And this is bad how?
Tom quoting a piece on possible chief justice Thomas:
Although he frequently is seen as an identical vote with Justice Antonin Scalia, in fact, Thomas has gone far further in his positions than any justice, including Scalia. In a recent, little-noticed biography of Thomas by Atlanta Journal Constitution writer Ken Foskett, Scalia provides a remarkable assessment of his colleague. Thomas, Scalia says, does not believe in stare decisis (the doctrine that courts must adhere to precedents set by previous court rulings”, period. [sic] If a Constitutional line of authority is wrong, he would say, lets get it right. I wouldnt do that.
Emphasis added. Assuming he’s on the right (meaning correct side), I don’t see how that is bad. There are thousands and thousands of pages of bad case law. In fact, a lot of it is total bullshit. A clean slate gets the nod from me.
December 9th, 2004 at 10:51 am
“A clean slate gets the nod from me.”
definatly
December 9th, 2004 at 12:48 pm
I lean more towards Scalia’s almost-clean slate. If the existing precedent is clearly erroneous, it should be reversed, but if it is defensible, there’s a value to stability. As a general rule, we should be able to read this year’s Supreme Court cases and assume that the rulings will apply to us next year, and the year after, etc.
December 9th, 2004 at 4:22 pm
The clean-slate approach ought to be done only with great caution. From my reading, Thomas wouldn’t use such caution; he doesn’t seem to place the same value in “stability” that Xrlq does.
December 9th, 2004 at 11:29 pm
If you can back up your reasoning using “original intent” reasoning and “strict scrutiny” analysis, then I agree that there are reams of really bad decisions out there that need to be overturned.
However, it must be done under those specific conditions, or it opens a Pandora’s Box of activist decision-making…
Oh, wait. Isn’t that the problem we’ve been facing for decades already?
December 10th, 2004 at 12:04 am
Wasn’t Brown v. Board of Education a case where a precedent had been overturned, or am I thinking of something else?
December 10th, 2004 at 1:25 am
It’s perfectly OK to overturn precedent if it moves us in a leftward direction–a ratchet only turns one way, you know.
🙁