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Why "Settled Law" Isn't Really Settled -- and Why That's Often a Good Thing

The Supreme Court needs to have the power to overturn "settled" constitutional decisions in order to prevent the permanent entrenchment of terrible precedents.

Judge Brett KavanaughJudge Brett Kavanaugh

During last weeks' confirmation hearings for Supreme Court nominee Brett Kavanaugh, much time and energy was devoted to trying to determine whether the nominee thinks that Roe v. Wade is "settled law," as he described it in the hearings. Key swing-vote GOP Senator Susan Collins indicated she was reassured because Kavanaugh said that Roe is indeed "settled law," while many Democrats were skeptical that he really believes that, pointing to a leaked 2003 e-mail in which Kavanaugh wrote that "I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so."

The truth is that "settled law" is just a euphemism that jurists and legal scholars use to refer to Supreme Court precedent that is indeed binding - but only until a majority of the justices decide that it should be overruled. In the 2003 e-mail, Kavanaugh was largely right to say that the Supreme Court "can always overrule its precedent." And that's a good thing. The Supreme Court needs to have the power to overturn flawed constitutional precedent, as this is usually the only way to correct wrong constitutional decisions, short of using the extraordinarily difficult amendment process.

If precedent were sacrosanct, the Supreme Court could not have reversed or superseded any of its most notorious past decisions. Just this summer, in the travel ban case, the Court repudiated Korematsu v. United States, the notorious 1944 decision that upheld the World War II-era racially-based internment of over 100,000 Japanese-Americans. Hardly anyone objected that it was somehow inappropriate for the justices to junk a 74-year-old precedent. Indeed, the main objections voiced (including by me) were that the Court implicitly retained much of the overdeferential approach to executive power it had used in Korematsu, thereby making a terrible mistake in the travel ban case itself.

Few people, particularly on the left, pine for the return of Bowers v. Hardwick, the 1986 case in which a narrow majority upheld the constitutionality of anti-sodomy laws. The Court eventually overruled Bowers in Lawrence v. Texas (2003), which has since become something of an iconic decision.

Highly controversial Supreme Court precedents like Bowers, Korematsu, and - yes - Roe, are never truly "settled" unless and until a broad consensus develops supporting them. In some cases, a precedent might become settled despite continuing widespread doubts about its correctness, if getting rid of it would inflict massive costs by upsetting expectations or generate an overwhelming political backlash. But even that won't necessarily prevent reversal if those who seek to overrule the decision believe that its perpetuation inflicts even greater costs. Many, if not most, pro-lifers believe exactly that when it comes to Roe, especially those who believe that abortion is comparable to murder.

Today, pretty much every law professor and legal commentator can name Supreme Court decisions they would like to see overruled. High on my list are cases as Kelo v. City of New London (and also Berman v. Parker, the earlier precedent on which it is based), Gonzales v. Raich, and - most recently - the travel ban case. I would be happy to see all of these eliminated at the first available opportunity.There are other precedents I would like to see cut back on more gradually, out of consideration for reliance interests and political constraints.

If you follow constitutional law at all closely, you probably have a list of your own, that may well differ from mine. It would be surprising if Kavanaugh does not have one, as well. Indeed, in 2016 he said he would like to "put the final nail" into Morrison v. Olson, the controversial 1988 ruling that upheld the independent counsel act (though it should be emphasized that overruling Morrison would not render the Mueller investigation unconstitutional, because the latter is entirely consistent with the Justice Antonin Scalia's dissent in the Morrison case, which Kavanaugh has praised).

In some cases, it might make sense for the Court to defer to potentially misguided precedent if the justices are highly uncertain about whether it is indeed an error, or if there is a very broad consensus about its correctness. But that is rarely true of controversial decisions that have generated a strong movement seeking their reversal.

In exchanges with Democratic senators, Kavanaugh tried hard to reveal as little as possible about what, if any, precedents he might want to reverse. But, as Damon Root of Reason points out, he did make a revealing statement about precedent in response to a question from GOP Sen. Ben Sasse:

Sasse approached the question of overturning precedent from a different angle. "It isn't the case that every decision the Supreme Court has ever made is right and is now a part of the permanent rulebook. You sometimes have to throw them out," he said. "So, sixth-grade level, help us understand how from 1896 to 1954…in those 58 years the Court was wrong for that whole time." Sasse was referring to Plessy v. Ferguson, the 1896 ruling that enshrined the doctrine of "separate but equal," and to Brown v. Board of Education, the 1954 decision that overruled Plessy. "The way we think about precedent," Sasse observed, "we might have our sixth graders thinking we should always take every received decision as right. So how do you reconcile the two?"

"One of the genius moves of Thurgood Marshall," Kavanaugh replied, "among many genius moves, was to start litigating case by case." Marshall was the NAACP lawyer (and future Supreme Court justice) who spearheaded the litigation and ultimately argued and won Brown before the Supreme Court. "He knew Plessy was wrong the day it was decided," Kavanaugh continued. "But he also knew as a matter of litigation strategy the way to bring about this change was to try to create a body of law that undermined the foundations of Plessy. And he started litigating cases and showing, case by case, that separate was not really equal." That, Kavanaugh concluded, was how Marshall "was able to show that the precedent, even with principles of stare decisis in place, should be overturned."

The Supreme Court has explicitly stated that a precedent can be overruled if its logic been weakened by intervening decisions, and such gradual erosion is often how a once-important precedent loses its force, whether or not it is ever formally overruled. Even in Brown, the Supreme Court did not completely overrule Plessy, and certainly did not conclude that the latter was wrong the day it was decided. It merely held that school segregation was unconstitutional because experience and modern social science had shown that segregated schools could never be truly equal, thereby leaving open the possibility that segregation might still be permissible in other contexts, and that Plessy might have been justified back in 1896. Nevertheless, Brown ultimately led to the effective gutting of Plessy, including in decisions striking down segregation laws outside the context of education.

The Supreme Court can potentially use a similar approach to weaken other precedents the justices are reluctant to overrule completely. Perhaps a conservative majority will do just that with Roe. Whether that is justified in a particular case depends on the merits of the ruling in question, and also how much harm might be inflicted by upsetting "reliance interests" that have arisen from it. Regardless, the issue cannot be decided simply by appealing to the authority of "settled law."

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  • Eddy||

    "SCOTUS is obliged to resolve the conflict in a way that best defends BOTH rights equally"

    And how effective has that been?

  • Eddy||

    Seriously?

  • Eddy||

    You haven't posed a solution, you've assigned a function to the Supreme Court which would baffle Solomon himself. Indeed, when Solomon said he was going to split the baby, it was a bluff.

    You can't simultaneously uphold a woman's "liberty" to kill her child and the child's right to live. Something has to give.

  • mad_kalak||

    Unalienable does not mean absolute, it means intrinsic. Like the sun is intrinsically bright by virtue of being a star.

    Life is not an unalienable right, even in the Constitution, as the the ability of government to take it away for the crime of treason is mentioned in it. And quit using the Declaration of Independence as a governing document, it is full of guiding principles, but not the nitty-gritty.

    The right to "liberty" depends on the cultural definitions of it at the time.

    ...in short, rights are a myth, that depend on shared cultural understandings.

  • MatthewSlyfield||

    "even in the Constitution, as the the ability of government to take it away for the crime of treason is mentioned in it."

    No, it's not.

    This is what the US constitution says about the penalty for Treason.


    The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

    Where in that do you see capital punishment(the death penalty) mentioned? I ask, because I don't see it.

  • mad_kalak||

    My mistake, I was getting the punishment for treason part mixed up with something in the 5th Amendment when it talks about punishment for crimes arising out of war, which can include deatlh

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

  • swood1000||

    ...in short, rights are a myth, that depend on shared cultural understandings.

    This is the constitutional amendment by modified cultural understandings school of thought.

  • Josh R||

    If the two rights are equally unalienable, how can this conflict be resolved?

  • Josh R||

    I'll buy that the resolution depends on the rights in conflict. How should it get resolved in this particular case with these particular rights in conflict?

  • BigHands||

    "One the fetus is viable, an abortionist cannot be allowed in the room. A live birth must be attempted with all the appropriate staff. (Exceptions for life and health of the woman)"

    Leaving aside the arguments surrounding whether a foetus is a child and all the possible implications of what can or may in the future be included in "mechanical means", if the foetus has a separate right to full protection under the law then why should there be any exceptions at all? I notice you do not include rape and incest as justifying rationale but why even provide for the health or well being of the mother? Abortion conveys a 100% certainty of death of the foetus/child while no identifiable risk to a mother carrying to term is so certain. How risky does a live birth have to be before a woman is allowed to decide and who should make that determination?

    And if a foetus is entitled to legal protections from conception then should a woman who has an "abortion after viability" - an intentional act performed with depraved indifference to the life of the "foetal child" - be charged with some form of homicide?


    "The woman SHOULD be allowed to "expel" (hate that word) at any time.
    But there can be no separate right to kill a fetal child that can otherwise live on is own (including mechanical means)"

    ?????

  • BigHands||

    You're correct in saying that I don't believe that any right is absolute; the old "yelling fire in a crowded theatre" argument and all that.

    Your argument is too theoretical by half. It doesn't answer basic questions, such as who determines the acceptable risk to the mother or why a foetus that is - for now - considered to be non-viable (and who makes that determination) does not have the unalienable right to life that you've stated it acquired at conception. At least it can be argued that murderers can be executed because they have forfeited their unalienable right to life but what crime has the pre-viable foetus committed? Unless, of course, you don't actually believe that the foetus' unalienable right to life is absolute.

    So, great, let's have unalienable rights all around so long as we don't half to get into the weeds about them.

    P.S. As if it weren't already clear, I am decidedly pro-choice.

  • BigHands||

    PPS, and by "pro-choice" I of course mean the woman gets to choose.

  • BigHands||

    "One the fetus is viable, an abortionist cannot be allowed in the room. A live birth must be attempted with all the appropriate staff. (Exceptions for life and health of the woman)"

    Leaving aside the arguments surrounding whether a foetus is a child and all the possible implications of what can or may in the future be included in "mechanical means", if the foetus has a separate right to full protection under the law then why should there be any exceptions at all? I notice you do not include rape and incest as justifying rationale but why even provide for the health or well being of the mother? Abortion conveys a 100% certainty of death of the foetus/child while no identifiable risk to a mother carrying to term is so certain. How risky does a live birth have to be before a woman is allowed to decide and who should make that determination?

    And if a foetus is entitled to legal protections from conception then should a woman who has an "abortion after viability" - an intentional act performed with depraved indifference to the life of the "foetal child" - be charged with some form of homicide?


    "The woman SHOULD be allowed to "expel" (hate that word) at any time.
    But there can be no separate right to kill a fetal child that can otherwise live on is own (including mechanical means)"

    ?????

  • Brett Bellmore||

    " if the foetus has a separate right to full protection under the law then why should there be any exceptions at all?"

    This is a problem you see often in emotionally fraught debates, where someone finds the opposition's position is so repugnant, that it becomes impossible to understand their arguments.

    If the 'foetus" has a separate right to full protection under the law, then when would there be any exceptions? When the situation is such that one or the other must, or at least likely, will die in any case,, and you're just deciding which one, obviously. Ectopic pregnancy, for instance.

    Did Galt say anything about rape and incest? No, he did not. Your mind just inserted that, because you weren't really following his argument to begin with, you were just treating him as advancing an argument you already had a pre-formatted response to.

  • BigHands||

    My reply seems to have disappeared (perhaps it was too long) so let me ask just a couple of questions.

    If a foetus has an absolute and unalienable right to life at conception (Galt's premise) then why does it lose that right simply because it has not reached "viability?" A three week old clump of cells can be aborted merely because it annoys the woman? How then can the foetus have an *absolute* right to life? Forget the balancing of absolute rights argument, that's pure BS. If rights can be assigned or taken away by third parties then they are not absolute. If Galt had said that the foetus acquires an absolute right to life at viability then his balancing act would be more consistent but still ultimately unsatisfying as it just begs the question as to how viability is determined and who gets to write the rules.

    Furthermore, who determines what is or is not an acceptable risk to the woman and/or the foetus? Certainly neither of the two parties concerned, albeit for different reasons. Since Galt has refuted the idea of a state-by-state determination on abortion, should we have a Federal Board of Life make that determination? Isn't that the logical consequence of the ideas that we need to be able to define when the foetus crosses some magical line of viability and when a woman must accept the risk of carrying to term?

  • BigHands||

    As to rape and incest, I merely noted that Galt had not used those as justifications for an abortion of a post-viable foetus and I was seeking some clarification. These factors have always been part of the discussion so, yeah, that part of my response was "preformed" but understanding boundary conditions is important in both differential equations and public policy.

    As to health of the mother, again no complications can ever be assured to be 100% fatal or seriously injurious to the woman; even ectopic pregnancies have been carried to term without death to either the woman or child. Abortion is always fatal to the foetus. If the foetus' right to life is absolute the woman cannot be allowed to terminate the pregnancy. The answer lies not in some artificial balancing act but in simply rejecting the false premise that the foetus has an absolute unalienable right to life acquired at conception.

  • BigHands||

    Make that,

    The answer lies not in some artificial balancing act but in simply rejecting the false premise that the foetus has an absolute unalienable right to life acquired at conception and, indeed, that any right is absolute.

  • Josh R||

    John Galt,

    Doesn't your solution (the woman's right to liberty wins out before fetal viability; the fetus's right to life wins out after fetal viability, except when the woman's life or heath is at stake) match current SCOTUS doctrine (noting that current SCOTUS doctrine permits the states to pass laws which ban abortionists from being allowed in the room after fetal viability).

  • Josh R||

    John Galt,

    Are you arguing that the Constitution requires the birth of a viable fetus? Are you additionally arguing the Constitution requires that the woman be able to abort a viable fetus when her life or health is at stake? Or, are you saying the Constitution is silent and you would leave the post-viability legal policy up to Congress to craft a national solution (noting what you think that policy ought to be)?

    Similarly for before viability, are you arguing the Constitution requires that a woman must be able to get an abortion, or are you saying that Congress should establish national policy (again noting what you think that policy ought to be)?

  • regexp||

    fetal child

    This phrase doesn't exist in law or science.

    God-given right to Liberty

    Magic sky wizards and the people who pretend to know what they want have varying degrees of definitions for "liberty". So excuse if we don't oblige.

  • NToJ||

    Both rights are alienable, and are in fact alienated frequently.

  • NToJ||

    "People are murdered, Does that mean laws against murder should be repealed as failures?"

    No, but you should recognize that the law against murder is the result of people getting together and making it the law, rather than the discovery of God's divine will or some other pointless shit. "Inalienable" is just a value-term people attach to the rights they think are really important. The definition collapses to "Rights I don't think should be alienated."

    "Moral principles are ridiculous because humans are not infallible gods?"

    If you have some moral basis for separating Set of Rights X from Set of Rights Y, then please share with the rest of the class. If your moral principle is that inalienable rights shouldn't be alienated, thanks for the profound wisdom.

  • FlameCCT||

    However only one chose an action that led to the other coming into existence.
    All actions (choices) have consequences, both good and bad.

  • mad_kalak||

    I wasn't sure you were Hiln until now. Just go way.

  • perlchpr||

    segregated schools could never be truly equal

    Oh, come on. Easy enough.

    Build the white school and the black school, equip them, staff them, etc.

    Then send the white kids to the black school and the black kids to the white school. If the white parents scream, they weren't equal. If they don't, they were. :D

  • bernard11||

    And if the black parents scream?

  • Brett Bellmore||

    Segregated schools could never be equal, because the people who demanded that they be segregated didn't want them to be equal. The people who wanted equal were also ok with integrated.

    It's like "reasonable gun control"; In theory, possible, in practice, not, because all the people who want gun control want unreasonable.

  • bernard11||

    Odd that Kavanaugh has admitted he hates Morrison v. Olson but, oh gee, it just wouldn't be right to discuss cases in the hearings.

    This guy is a liar and a conman. "Settled law" or not he will vote to overturn Roe, or gut it, at the first opportunity. Susan Collins is an idiot if she believes he won't.

  • Toranth||

    If he's a liar and a conman, what does that make every other Supreme Court justice?

    Half the court openly wishes to overturn decades and centuries of "settled law", or has participated in doing so. Merely refusing to discuss a specific issue (especially when they all did it, too) is nothing in comparison.

  • bernard11||

    Not talking about that.

    He was not truthful, in either of his earlier confirmation hearings, about his involvement with the material stolen from the Democratic staff.

    He got an email, with the subject "spying," saying the sender had a "mole" on the Democratic staff and he says it never occurred to him the material might have been obtained illicitly. Sure, Brett. Now pull the other one.

  • JesseAz||

    When i go to a website and it doesn't request a password, am I illegally entering the website? Just because liberals are too stupid to use basic security doesn't mean it was stolen. The guy literally just logged into the DNC server and was granted access. That's in the DNC.

    And why are you more pissed off at that than the DNC straight up being racist in denying a conservative Latino a shot at the USSC?

  • bernard11||

    When i go to a website and it doesn't request a password, am I illegally entering the website?

    When you go into a house which is unlocked, and steal stuff, are you a thief?

    Yeah. You are.

    Is it OK to lie about it later?

    No. It's not.

    Is your point stupid?

    Yes. It is.

  • Brett Bellmore||

    It's more like, if I walk into a book store that's open, and read the books from front to back because the proprietor has no idea how fast I can read, (That was me as a poor teenaged speed reader.) am I stealing the books? They're still there, the door was open, and you're allowed to look at the contents.

  • bernard11||

    Oh bullshit. What a bizarre rationalization.

    Unlike the books, these documents were not intended for general consumption.

    The bookstore owner doesn't care at all if you read these books somewhere else. These are not the only copies in the world. What he cares about is possible damage to his inventory, or crowding of the store by non-buyers, or maybe lost sales because you read in the store. He has no interest whatsoever in keeping the contents secret.

    That's quite different from the Kavanaugh case.

    And, BTW, if it was all totally fine, why did Kavanaugh lie about it, rather than make the case?

    Once again, there is nothing a Trumpist can do you won't swallow.

  • Don Nico||

    Bernard,

    It has been more than 3 decades since people have realized that any open website and and will be perused by people "outside the club."

    It is commonly understood in our society that an unlocked door is not an invitation to enter.
    But it is likewise long been understood that anyone maintaining an unsecured website at least tolerates entry by even a casual browser.

    I have no idea whether the website had any disclaimer posted to the turn "if you are not a DNC member" do not enter this site." Such a disclaimer might validate the DNC complaint.
    But absent a disclaimer or security measure it is a long stretch to say that in 2000 there was any reasonable expectation of privacy.

  • Toranth||

    So on a post about settled law, you make comments about settled law, but then choose to attack Kanavaugh on something completely different?

    He also said he respects the Senators, too, and thanked them for their time. Obviously, this guy is a real liar!
    Try to pick something that actually matters to complain about. I'm sure you can find something in the decades of rulings and legal briefs he's written, rather than playing word games about 'illicit' (your word) emails obtained legally through the usual political games.

  • bernard11||

    BS, Toranth.

    They weren't obtained legally, and Kavanaugh knew it.

    Oh, and he was absolutely not involved in the Pryor confirmation, except he was, and he has no opinuion about Roe at this point, except he's itching to overturn it (see Garza.

    The guy is a right-wing operative.

  • bernard11||

    I think lying under oath during a confirmation hearing matters.

    You (and Brett) seem to be defending the behavior, which was bad enough, and saying nothing about the lies.

    That's understandable.

  • bernard11||

    Here you go, Toranth.

    A nice discussion of Kavanaugh and "settled law."

    An excerpt:

    The principle that the Department of Justice does not exist to imprison the president's personal and political enemies should not be a "controversial" question that must be hashed out in the "political arena." In the very recent past it would not have been described as such by any nominee, Republican or Democratic. But for Trump's Supreme Court justices, the rule of law will be debatable.

  • EscherEnigma||

    Try to pick something that actually matters to complain about.


    Ok. In the 90s Kavanaugh thought that perjury to conceal non-criminal actions was something that "actually matter[ed]" quite a bit, and was grounds for impeachment.

    Based on his actions in the 2000s and 2010s, he no longer holds this view. When did his views regarding perjury change, and why?

  • TPKeller||

    And let's not forget the ever-present elephant in the room, our favorite set of twins, Heller and McDonald. No serious observer could offer any significant objection to the notion that those same Senators who worship at the alter of abortion just as vehemently loathe the "settled law" that is Heller and McDonald, and would be ecstatic to confirm a justice who would overturn them at the blink of an eye.

  • Michael Ejercito||

    That is the irony.

  • PeteRR||

    1) AR pattern rifles are often used for hunting. So they are in fact "hunting rifles". They can be used to hunt game.

    2) Militia weapons only? Civilians owned cannons back when the USSC was written. So how do you justify banning mere rifles?

    3) Miller says that any weapon with usefulness to militia duty is constitutional. They object to sawed-off shotguns, but that very type of weapon has been used in combat. There is no category of small arm that can't be justified as being necessary to fulfill one's obligation of being a member of the unorganized militia.

    4) The militia back in 1789-ish was composed of part time soldiers equipped with state of the art weaponry. How is the militia today, organized and unorganized, supposed to fulfill its duty if it isn't also equipped with state of the art weaponry?

  • VinniUSMC||

    There's the Hihnfection that we all love to hate.

    I was worried that you forgot how to use bold.

  • FlameCCT||

    He/she/it appears to have gone completely Hihnsane, to the point of changing his/hers/its name. Unfortunately the Hihnfection give him/her/it away, every time. He/she/it can't help himself/herself/itself!

  • Don Nico||

    "They object to sawed-off shotguns" called the lupara in Sicily these have long been considered an effective mafioso weapon.

    Recall in the Godfather, Michael being warned that in Sicily women are more dangerous than lupara.

  • Brett Bellmore||

    "who lie about Heller -- that Scalia reaffirmed US v Miller, that 2A protects only the modern version of the weapons that people brought from home for militia duty."

    Actually, Scalia lied about US v Miller, inverted it, because what US v Miller stood for was the idea that to be protected by the 2nd amendment, a gun had to have military utility. Your grandfather's fowling piece? Totally unprotected, (Unless by the 9th amendment.) Your full auto assault rifle? Covered by the 2nd amendment.

    Scalia found that too scary, so he stood Miller on its head.

  • Brett Bellmore||

    No mind game. In common use at the time changes with the time, but the question the Court asked in Miller was NOT if sawn off shotguns were in common use, either then, or at the founding:

    "In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158."

    If it had been shown that a sawn off shotgun was "ordinary military equipment", or could be used as such, Miller would have prevailed. That was the deciding issue: Not whether sawn off shotguns were in common use at the time the 2nd amendment was ratified, but whether they were military arms.

    And Miller lost because it wasn't demonstrated that they were. (Because he wasn't represented, of course; US v Miller was a trial in abstentia.)

  • MatthewSlyfield||

    "If it had been shown that a sawn off shotgun was "ordinary military equipment", or could be used as such, Miller would have prevailed."

    And with no one to oppose them in the final appeal (Miller died before the case got that far), the US administration at the time deliberately deceived the court on this issue.

    While the Administration argued that short barreled shot guns* had no military utility, in point of fact the US army actively used short barreled shotguns for trench warfare during WWI.

    *NOTE: Sawn (or Sawed) off shotgun is a misnomer. The law in question prohibits possession of shotguns with a barrel length of less than some number of inches (I don't feel like looking it up). It doesn't matter whether you took a long barreled shot gun and cut the barrel down or if the shotgun in question was manufactured with barrel shorter than the law requires.

  • Michael Ejercito||

    If you follow constitutional law at all closely, you probably have a list of your own, that may well differ from mine. It would be surprising if Kavanaugh does not have one, as well. Indeed, in 2016 he said he would like to "put the final nail" into Morrison v. Olson, the controversial 1988 ruling that upheld the independent counsel act (though it should be emphasized that overruling Morrison would not render the Mueller investigation unconstitutional, because the latter is entirely consistent with the Justice Antonin Scalia's dissent in the Morrison case, which Kavanaugh has praised).


    I was wondering.

    Could Congress create an Office of the Independent General, who would have control over a part of the military and have the same legal protections from dismissal as the Independent Counsel had?

  • Flight-ER-Doc||

    Since Congress has an Article I section 8 duty to establish the rules for the Army and Navy, then yes...

    But I fail to understand what your point is in asking.

  • Michael Ejercito||

    Could Congress limit tge President's authority to remove an Independent General?

  • MatthewSlyfield||

    "If judged as treason, which it was (by definition)"

    No. Here's the definition of treason from the US Constitution Article 3, Section 3.


    Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

    "both could be shot,"

    Again, no.

  • MatthewSlyfield||

    "Aid and comfort includes giving a military adversary determination of our Presidency."

    No, the events as outlined in the accusations against Trump Jr. would constitute him receiving aid and comfort from the Russians, not him giving aid and comfort to them. Receiving aid and comfort from the enemy is NOT included in the constitutional definition of treason.

  • FlameCCT||

    It's not worth arguing with Hihnsane!

  • MatthewSlyfield||

    "KNOWINGLY conspired WITH THE RUSSIAN GOVERNMENT to "aid" Trump's election"

    Is still not treason.

    If you can find some statutory law passed by Congress to prosecute Don Jr for violating, go right ahead.

    "Junior's email exchange, for the Trump Tower meeting, proves a conspiracy."

    No, it doesn't and cannot legally prove a conspiracy to commit treason.

    Again per the US Constitution, to convict someone of treason, you must have either two eye witnesses to an over act of treason, or a confession in open court

  • MatthewSlyfield||

    "Imagine our next President, after Pearl Harbor, determined by Hirohito, achieved by conspiring with the candidate that the Japanese government wanted. You'd give that candidate the equivalent of a parking ticket?"

    1. We are not currently at war with the Russians or facing an imminent war with them,. We have not been attacked by the Russians. Your posited hypothetical post Pear Harbor situation has zero equivalence to our current situation / position in regards to Russia.

    2. There is a million mile gap between charging the president elect or any of his campaign officials with treason and anything that would be "the equivalent of a parking ticket". This is a false dilemma.

  • Don Nico||

    Under our doctrine of civilian control of the military, the DoD IG or the IG of the Dept of the Army, Navy, etc. has such authority.

  • Michael Ejercito||

    Even in Brown, the Supreme Court did not completely overrule Plessy, and certainly did not conclude that the latter was wrong the day it was decided. It merely held that school segregation was unconstitutional because experience and modern social science had shown that segregated schools could never be truly equal, thereby leaving open the possibility that segregation might still be permissible in other contexts, and that Plessy might have been justified back in 1896. Nevertheless, Brown ultimately led to the effective gutting of Plessy, including in decisions striking down segregation laws outside the context of education.


    And yet, public universities could exclude applicants from admission on the basis of race.

    When was Brown overruled?

  • Brett Bellmore||

    Not any more? They're still doing it. They just changed the races that were being excluded.

    Affirmative action to admit blacks is affirmative action to exclude anybody else. Not 100%, mind you, but still deliberate racial discrimination.

    That's why they invented the "diversity" BS, to pretend that they weren't really racially discriminating, that it was just an incidental side effect of seeking 'diversity. By discriminating.

  • Brett Bellmore||

    Excluded relative to the rate of admission if race blind criteria were used.

    It's a zero sum game: If you racially discriminate in order to bring in more of one group, you are racially discriminating to bring in fewer of another.

  • Brett Bellmore||

    It's ironic that, in modern parlance, a "bigot" is somebody who thinks people should just ignore race, and treat everyone they encounter on their own merits as an individual.

  • Josh R||

    Of course Ilya is correct on the legal term, but I'm pretty certain by "settled law" in this context, Collins means Roe deserves broad consensus and shouldn't be overruled by SCOTUS.

  • bernard11||

    "school segregation was unconstitutional because experience and modern social science had shown that segregated schools could never be truly equal,"

    What's this? What do "experience and modern social science" have to do with original public meaning? You mean, just because we know things James Madison didn't know, we can interpret the Constitution with those things in mind?

    Don't tell the other Conspirators you think that.

  • Eddy||

    I don't think James Madison wrote the 14th Amendment.

    In any case, Brown was only "necessary" because the 15th Amendment wasn't enforced - when black people were illegally disenfranchised the white majority could walk all over them, and did.

  • floridalegal||

    Structurally, Roe will inherently have to change due to the court underpinning the state's right/government interest at "viability". "Viability" with the best medical advances and practices today is not the same as it was in 1973. As viability moves sooner and sooner in the pregnancy, the interest of the State, under Roe's structure, increases and is earlier in the pregnancy. A significant portion of Roe was what was the current state of medicine and viability at the time and thus the policy structure of interests at different trimesters.

    I'm sure that some will consider this chipping away at Roe but, even the most progressive individuals do not have widespread support for late-term abortion/partial birth abortion when there is no medical basis /health of the mother at stake.

  • Brett Bellmore||

    Perhaps, I know this is crazy talk, perhaps women who don't want to have kids should start using contraceptives, instead of waiting until they get pregnant, and killing the baby?

  • ||

    Coming from a member of the party who supports making people bake wedding cakes at gunpoint, and the party who thinks you should be forced to buy health insurance, and the party who thinks you should not be allowed to buy 30 round magazines or 32 ounce sodas, that's pretty funny.

  • Thrax2||

    Perhaps, I know this is crazy talk, contraception isn't perfect?

    Perhaps, I know this is crazy talk, "please use contraception" for some reason doesn't persuade rapists?

    Perhaps, I know this is crazy talk, abortion is necessary when pregnancies threaten a mother's life or health?

  • QuantumBoxCat||

    The first steps in the broader strategy would likely be a reconfiguring of the weights when conducting the balancing test under Casey's undue burden standard. Where some Justice's see a state statute as constituting such a burden, other Justices will not see it as a burden. Since an analysis under Casey's can support state limitations on abortion, while upholding Casey as precedent, no immediate over-turning of anything is needed.

    Then, each case decided in favor of the state restriction can be used in future cases for an argument that the central holding is no longer supported. A body of cazelaw can eventually be used to attack Roe's central holding of the liberty interest. Kavanaugh detailed the roadmap when he praised Marshall's litigation strategy as means of ultimately attacking Plessy. It's a slow game, and much can happen in in the meantime, but the strategy is spelled out right in his testimony, and is a strategy that is open for any group to use against any "settled case."

  • bc15||

    "whether the nominee thinks that Roe v. Wade is 'settled law,'...The truth is that 'settled law'...is indeed binding - but only until a majority of the justices decide that it should be overruled."

    It depends on what the meaning of the word "is" is! Of course, Roe v. Wade *is* settled law and Kavanaugh *has* no reason to overturn it. However, as a Supreme Court justice he will also be required to listen to any *future* arguments and evidence presented in future cases impartially and without pre-judgment. It would be improper for him, or any other justice, to comment now about how any hypothetical future cases might impact or be impacted by Roe.

  • Lee Moore||

    Prof Somin is obviously an optimist. The same power to disregard precedent that allows SCOTUS to swap a bad precedent for a better one, also allows it to swap a good precedent for a worse one.

    If we are discussing whether this is a "good thing" we are allowed to offer alternatives even if that would require changing the constitution. It would be quite possible, constitutionally, to bind SCOTUS to obey its own precedents (though a harder thing practically to enforce that.)

    The problem that that would then entrench bad precedents behind all sorts of two thirds and three fourths majorities can be addressed by reducing those supermajorities, either generally, or for amendments specifically related to reversing "bad" precedents. In the second case, for example, it could be SCOTUS itself which proposed an amendment to reverse an old precedent that it thought needed changing.

    As to generally, if a three fourths majority of States is required for ratification, it's hard to see why Congressional supermajorities would be needed at the proposal stage.

    The advantage of binding SCOTUS to its own precedent is that it would reduce Justices' enthusiasm for deciding cases by reference to their opinion of what makes good policy, as opposed to what's written down. After all, if you want to overtrump Congress, waiting for three quarters of the States to ratify is not nearly as much fun as being able to do it just like that.

  • Dilan Esper||

    The Constitution calls for a common law legal system. Which means precedent matters.

    Judges, lawyers, and clients rely on precedents and caselaw. Even "wrong" decisions are sometimes workable, and overturning them wreaks havoc. Plus there is wisdom in the great minds of the past.

  • Brett Bellmore||

    The Constitution preserves common law, but common law never trumps statutory law, and the Constitution is statutory, written out.

    England has a common law constitution, (Which is to say, doesn't have a constitution.) The US does not. We just have a statutory constitution which allows for common law to continue to be applied where it doesn't conflict with statutes.

  • Brett Bellmore||

    The Constitution itself declares itself to be law:

    "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. "

    You can't claim to be following the Constitution, and deny that the Constitution is law.

  • Dilan Esper||

    Cases fix the meaning of statutes and constitutions, Brett.

  • Brett Bellmore||

    I think we need to be more selective about what we define as "settled law"; There's law that's settled because nobody disputes it, and there's law that's 'settled" because the courts imposed it on an unwilling populace, and keep it in place despite continual efforts to overturn it.

    Roe v Wade belongs in the second category. It isn't "settled law" except as far as the lower courts are formally concerned, because it's never been made peace with.

  • Brett Bellmore||

    I "never made peace with racial equality", in the sense that I want equal protection of the law for everybody, without any legally sanctioned racial discrimination?

    I suppose War is Peace, and Freedom is Slavery, too?

  • bernard11||

    there's law that's 'settled" because the courts imposed it on an unwilling populace, and keep it in place despite continual efforts to overturn it.

    I don't know if Roe fits this or not, but Brown surely does. Does that make it a bad decision?

  • Sarcastr0||

    Well, this comment thread sure is useless. Someone seems to have pooped all over it!

  • kramartini||

    The concept of "settled law" in the Constitutional context is inconsistent with Article V, which provides the procedures for amending the Constitution. Supreme Court decision is not one of the authorized methods of Constitutional amendment.

  • kramartini||

    It would have been obvious to the real (I mean fictional) John Galt what I am talking about...

  • kramartini||

    I wasn't evading you, merely taunting you. I guess I need to spell it out.

    Constitutional interpretation must always be provisional and never "settled", since viewing a Constitutional precedent as "settled law" is tantamount to viewing the precedent as an actual part of the Constitution--in other words, a judicial amendment.

    Every Constitutional precedent must stand or fall based on its consistency with the Constitution and must be eternally subject to challenge.

  • kramartini||

    So you admit that you knew what I meant all along? (Maybe you are the real--er fictional--John Galt!)

    I am not sure why what I said is so controversial to you. The implication of what I said is not that radical.

    It is merely that if the Supreme Court ever hears a case which is governed by a previous Supreme Court case, it is not enough for the Supreme Court to merely cite the prior case. It must also defend the prior case from any attacks by the litigants in the new case and it must do so using more than a blanket assertion that the prior case is "settled law".

  • mad_kalak||

    I saw over a hundred comments, and thought this would be a good thread to read over lunch. Then I saw that roughly half of them are Hiln who appears to be high on something considering the rapidity of his comments, even if many were "cut & paste" jobs. What a waste!

  • BigHands||

    "If I were God's authorized agent, I would provide a magic transposition formula so that historical Rule A will always apply suitably to any later Situation B if Universal Social Wild Card Factor X is plugged in."

    Sounds like a lot of work, too many "what if's." It would be easier for God's authorized agent to simply destroy any universe in which Rule A ceased to apply.

  • swood1000||

    I guess "settled law" is meant to imply a species of precedent that is super-charged, having a greater presumption of correctness than ordinary precedent. This is the approach we finding ourselves with when the Supreme Court embarks on a mission to reform policy.

  • ||

    Given that the people who drafted the 14th Amendment explicitly approved of anti-miscegenation laws, it's hard to argue that that decision was not "legislating from the bench." And the mere term "marriage equality" starts out as dishonest, as homosexuals always had equal marriage rights. They just didn't have the right to do something else and call it "marriage."

  • swood1000||

    They've never done that, which also suggests you may not now what "policy" means.

    They do that when they change the meaning of the constitution to be closer to what the court thinks it should mean. For example, when they say that since a woman making herself a dress to wear is not buying a dress from interstate commerce, the federal government has the authority to regulate this activity.

    They determine if LAWS (not policies) are properly Constitutional -- defend individual rights -- most of which are never stated or described by the Founders, intentionally,

    Right. The founders intended for the Supreme Court to announce new rights, and the ninth amendment was not intended to limit the power of the federal government but to enlarge it by giving the Supreme Court the power to limit the power of the States to legislate in whatever areas it chooses. Not likely.

  • swood1000||

    It's the CONSTITUTION that forbids states from claiming powers NEVER delegated.

    This one quote shows a confusion that I have no idea how to penetrate.

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