Sunday, December 4, 2016

Would overturning gay marriage make a mockery of SCOTUS stare decis policy?

There are a lot of wonderful writers who read the tea leaves of SCOTUS and explain their motives after the fact. We particularly like Nina Totenberg, NPR's goddess of legal exposition, Slate's Mark Joseph Stern, who is incisive, lively, a good writer, gay and who takes an adorable picture, and Dahlia Lithwick, also of Slate, who always leaves us civilians with a better understanding of the overlords jurisprudence. Now it seems that Slate has added another great explainer to its stable: Lara Bazelon
     Her recent piece explains John Robert's alleged concern about his legacy (which must have been vacationing in Bermuda when he participated in the overtly political SCOTUS decision (unsigned!) to stop the Florida recount in 2000, handing the White House to Bush the Stupid. (Sandra Day O'Connor has admitted she has buyer's remorse over signing on to that and now maintains that SCOTUS shouldn't have taken the case.)
     The court's reliance on precedence, we are told, is called stare decis, latin for "to stand by things decided."
     The Supreme Court, Bazelon informs us, has a policy about when it may chuck stare decis: 
     But if one relic can be overturned, why not others? It is a fair question. The short answer is that the court’s policy is not to deviate from stare decisis except under the most extraordinary circumstances. It is only permissible when the rule has proved unworkable or anachronistic, when so few people rely upon it that its disappearance will not cause a societal disruption, or when the facts have changed so dramatically “as to have robbed the old rule of significant application or justification.”
And how would a reversal of Obergefell, (the court's marriage decision, in which Roberts voted in the anti-gay marriage minority) comport with the above guidelines? Bazelon continues:
     The laws upholding the right to choose and the right to marry are not unworkable in practice and they are anything but anachronistic. Nor has there been a dramatic change in the underlying facts that robs the laws of their relevance or justification. The only reason to overturn these precedents is ideology: that is, a majority of justices who believe that abortion and gay marriage are morally wrong. Should Roberts allow the ideologues to have their way, the consequence will be a terrible disruption to the lives of millions of people who have come to rely on these constitutionally enshrined rights when making crucial life decisions. And the Roberts court would go down in history as having bankrupted the only branch left to stand by things decided.

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