Legal heathens, Constitutionalists, SCOTUS wannabes etc.

Discussion in 'Law and Justice System' started by BasicGreatGuy, Sep 18, 2009.

  1. BasicGreatGuy
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    BasicGreatGuy Aut libertas aut mors

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    Do you believe Stare decisis plays an important role in the judicial branch of this Republic? If so, do you agree or disagree with Stare decisis?
     
  2. goldcatt
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    goldcatt Catch me if you can! Supporting Member

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    Actually, I generally agree with stare decisis. I'm a pragmatist after all. :D
     
  3. goldcatt
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    goldcatt Catch me if you can! Supporting Member

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    Whether it plays an important role in the judiciary depends on who sits on the bench. The principle ebbs and wanes like any other - but never disappears completely.
     
  4. lawbuff
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    Catt mentioned Lawrence v. Texas in another thread. I am familiar with it. The SC gives an overview of it and why they overruled Bowers.

    I agree with it to a great extent, and in most cases, it should be followed.

    There was a case, oh 5 or 6 years ago, where they had discussed overruling Miranda, as was moved to do, they declined.
     
  5. BasicGreatGuy
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    BasicGreatGuy Aut libertas aut mors

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    Does it make sense to base decisions on prior bad decisions? Do you find the notion of "settled law" to be a dangerous one?
     
  6. goldcatt
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    goldcatt Catch me if you can! Supporting Member

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    Pragmatism in constitutional inerpretation isn't quite the same as pragmatism in politics, although I claim both. It means a non-originalist view that favors both a four corners reading and relicance on precedent - or settled law.

    Stare decisis doesn't mean the principle never changes. It means the bench favors settled principles and requires a bigger push to overturn them, so to speak. Yes, in general settled principles are good and necessary. Justice above all should be reliable, right?

    Of course, I say in general because every now and again you get a case where the Supremies must have been smoking crack, like Dred Scott or Bowers. They're human, they make mistakes, and they need to be able to overturn those mistakes when they are shown to be wrong. The bar just has to be higher.
     
  7. goldcatt
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    goldcatt Catch me if you can! Supporting Member

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    Bowers was wrongly decided. That's why it should have been overturned, and that's why it was overturned. Miranda was not wrongly decided IMO, although if you ask me some of its offshoots go too far. But Miranda itself should not be overturned.
     
  8. BasicGreatGuy
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    BasicGreatGuy Aut libertas aut mors

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    In my opinion, the reliance on "settled law" has come to be very heavy upon the Court as well as the inferior courts. I am not suggesting that all precedents be ignored. However, I find it troubling that prior decisions are often used a legal buttrace, even if they are wrong in the legal eyes of those on the bench.
     
  9. goldcatt
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    goldcatt Catch me if you can! Supporting Member

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    The point is, we are a nation of laws. Even if the judges sitting on the bench don't like the settled law, it must be applied with an even hand or there should be a darn good reason to change it. Settled law helps Lady Justice keep her blindfold on and her scales balanced. It also helps keep the rest of us from guessing what our rights are today. Change in the law can be slow, and frustrating, but that slow deliberate movement is necessary to keep the system as legitimate as possible when the people wearing the robes are mere mortals like ourselves.
     
  10. BasicGreatGuy
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    BasicGreatGuy Aut libertas aut mors

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    I can't agree with knowingly applying a past flawed decision against current ones. And before you know it, you have decades worth of bad rulings based on bad interpretation of law. Why should the standard for review be higher than that of original standing?

    Several of the SCOTUS' have stated that they believe Roe v Wade is bad law and that it should bave been left to the states. I agree with them. And yet, year after year, decision upon decision is made by the Court, based on the notion of "settled law." If the law were perfect and men were angels, I would concede your point gold.

    Lawrence v Texas is an example, in my opinion. Kelo is another. There are many. In my opinion, the principle and practice of Stare decisis for the sake of Stare decisis is flawed and dangerous to this Republic. In my opinion, it creates a barrier where there shouldn't be. To my knowledge, there is no law that states that the SCOTUS must act in that manner.
     

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