From: sunder@altair.crhc.uiuc.edu (Srinivas Sunder)
Newsgroups: alt.politics.elections
Subject: Re: Whether you like Clinton or not,...
Date: 23 Jul 1992 19:36:19 GMT
Organization: Center for Reliable and High-Performance Computing, University of Illinois at Urbana-Champaign
Distribution: world
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In article <1992Jul23.185403.15851@udel.edu>, lintz@buster.cis.udel.edu (Brian Lintz) writes:
|> In article <l6rb2mINN623@roundup.crhc.uiuc.edu> sunder@altair.crhc.uiuc.edu (Srinivas Sunder) writes:
|> >In article <1992Jul22.180447.21375@udel.edu>, lintz@buster.cis.udel.edu Brian
Lintz writes:
|> 
|> One of the reasons that Thurgood Marshall retired was because many of the
|> past decisions were starting to be overturned, for no reason other than
|> an ideological change in the Court. Souter, Kennedy, and O'Connor respected
|> Brennan and Marshall, and respect their opinions. They believe that if the
|> Supreme Court is to have any credibility, it shouldn't go around reversing
|> itself without a damn good reason. They don't think that a change in the
|> ideological makeup of the Court is a good enough reason. This is what I
|> respect them for.

What was the "damn good reason" that the Court used to overturn Plessy v Ferguson
in Brown vs Board of Education apart from the fact that it was against the
Constitution? None. So also, if there is reason to believe that a past precedent
was not constitutional, it is the duty of a judge to vote to overturn it.

Precedent for precedent's sake is a lousy excuse for upholding past law, as well
as intellectually dishonest. A good example was the trio's reasoning in
Casey. They said that "Liberty finds no refuge in a jurisprudence of uncertainty"
(or words to the same effect), followed that up with "... there has been no
evolution in legal principle since Roe that would cause its central principle
to be invalid..." and promptly went on to gut it while maintaining its outer
shell. What evolution in legal principle prompted the court to uphold the
Webster restrictions (w/o Souter)? And what evolution allowed them to hold
one part of Roe legal but not others? 

[there's a superb editorial ripping the decision to shreds in the latest
edition of the New Republic]

They were trying to cover all bases, quite like politicians, by keeping
abortion legal, but allowing states to all but illegalize it, and inviting a 
barrage of lawsuits testing whether or not the three of them felt that 24 hrs.
was an undue burden, but 24 hrs. and 1 second was not and what not. In effect,
playing God with the issue of abortion. On the other hand, Blackmun and Stevens
were against ALL strictures outright; and Scalia & Co. would have upheld any and
all strictures ("Liberty finds no refuge in a jurisprudence of confusion either").
If they indeed believed that the right to an abortion was covered by the 14th
Amendment's guarantee of liberty, then they should have struck down the law and
all parts of it under the strict scrutiny standard applied to fundamental rights.
Otherwise, if it was NOT a Constitutionally guaranteed liberty, but one that the
Court created because they felt it a good idea (at the time of Roe), then they
should have thrown out Roe. A middle ground is fine for a politician, but not
for a judge. 

|> Brian Lintz
|> lintz@udel.edu

-- 
Srinivas Sunder                                         sunder@crhc.uiuc.edu

If my employer shares these opinions, he deserves them.
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Newsgroups: alt.politics.elections