On “Precedents”, “Settled Law”, and True Justice

Some of the more illuminating testimony in the current Senate hearings over the new Supreme Court nominee has centered on the word “precedent”.

That’s a legal term for a previous judicial decision that a court will consider to be binding authority in all cases to which it is applicable. This is an important feature of a common law-based legal system, like ours. It means that once a legal issue has been resolved, there is a strong preference for respecting and giving deference to that decision, so that there can be some clarity and predictability about what the law is. The fancy Latin term for this respect for precedent is “stare decisis”, which means, basically, “maintain what has been decided”. Lawyers will typically refer to such issues as “settled law”.

Of course, not all previous judicial decisions are worthy of respect. A decision that was plainly erroneous should not be followed. Nor should a decision that directly contradicts a fundamental value of our Constitutional system, or basic justice. Courts frequently overrule prior decisions when it becomes clear that they were erroneous, or that circumstances have sufficiently changed that they are no longer applicable. (Or, to be cynical, when the composition of the Supreme Court has changed.)

So, for example, we have the infamous Dred Scott v. Sandford decision of 1857. There, the Supreme Court decided that that African slaves, even after they are freed, could never be citizens and that they “had no rights which the white man was bound to respect”. Abraham Lincoln saw clearly that this exercise of judicial power was illegitimate, in violation of natural justice and the principle of universal equality in the Declaration of Independence. He gave it no respect, nor did it deserve any, despite the principle of stare decisis, and no American court has ever considered it to be “settled”. Instead, the decision is universally repudiated as a gross injustice.

Or take the case of Buck v. Bell, the iniquitous Supreme Court decision of 1927, which upheld the involuntary sterilization of mentally handicapped persons. This is the case in which Justice Oliver Wendell Holmes (who is, inexplicably to me, one of the heroes of the legal profession) ended his majority opinion with the horrendous sentence, “Three generations of imbeciles are enough”. That case legitimized eugenics in the United States and constituted an egregious violation of fundamental human rights. It’s hard to believe, but this decision has never been explicitly overruled by the Supreme Court. But nobody would consider it to be “settled law”, and it is rightly viewed with the contempt that it deserves.

Now we come to the modern age, and we have the cases of Roe v. Wade, Planned Parenthood v. Casey, and their ilk. These injustices have excluded unborn children from virtually any legal protection, have deemed them not to be “persons” under the law, and permit their destruction with impunity. They have established the unborn as a virtual underclass, whose rights no man is bound to respect. They violate the fundamental principles of natural law and justice, and the promise of universal equality under the law and the right to life as expressed by the Declaration of Independence.

Nevertheless, the new Supreme Court nominee has called these decisions “precedent”, and considers the law they establish to be “settled”. Make sure that you understand the significance of that terminology — “settled law” must be followed and applied to future cases, and “precedents” must be respected and not overturned. This means that the nominee is committed to upholding Roe and Casey, and applying their evil rules to abortion cases that come before the Supreme Court.

I attended the same great high school as the Supreme Court nominee, Cardinal Spellman High School. I also went to an Ivy League college and law school, as did the nominee. But I learned something different along the way.

I learned that when a law — either a statute or a judicial decision — violates the inherent, inalienable rights of any human being, then that law can never be considered to be “settled”. It can never be respected or given deference as a binding “precedent”. Such a law is not really a law at all, but is instead a usurpation of power and an act of violence. A true respect for authentic justice means that it must be opposed and changed.

It’s tragic that this is not being made clear before the Senate this week. But the real tragedy will come if the nominee is seated on the Court and decides to applies the evil “settled law” of Roe and Casey.

Justice must take precedence over “precedents”. Otherwise we do not have an authentic rule of law for all, and we will never fulfill the dream of respecting the inalienable rights given to us by our Creator, particularly the right to life.

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