The danger of precedent

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You’re gonna hear about the Supreme Court a lot in the coming days and weeks. They’re hearing a case that could change the course of human events in the U.S. for a long time to come (or not). It really depends on how the court decides the case it heard yesterday, the one about abortion and limiting it.

One of the ways the court makes it’s decisions is based on precedent. Precedent is used to help guide the court in making decisions related to issues of the past. A court obviously can’t really know if a decision they are making in the current day will be used as precedent, but they certainly know in the present when they are using the precedent set by earlier courts.

One of the things about SCOTUS (Supreme Court of the United States) is that it relies heavily on precedents set by previous courts. This is kind of a nod to the fact that those justices have made a correct ruling based on interpretation of the Constitution, intent of the Founders, etc., etc. Therefore, most decisions coming from the court often don’t step on previous decisions and most often don’t overturn precedent.

But, there have been times where that has taken place and it was no small matter.

The best example of a court reversing it’s own precedent (and really the best one to apply now to abortion) is the 1896 case of Plessy vs. Ferguson. The precedent that was set by the court as a result of that case became known as the “separate but equal” doctrine. Essentially it established that, for all intents and purposes, segregation was legal as long as accommodations were equal for both races. Of course, we know the application of that doctrine didn’t really get applied that way and was the basis for all sorts of discriminatory and racist laws. Over and over there challenges to those racist laws and over and over the court upheld decisions in favor of racism simply because the justification was the precedent of Plessy. That precedent would eventually be overturned by a different and later court, which set a new precedent. The 1954 case of Brown vs. The Board of Education turned Plessy on it’s head by deciding in the case that separate was not equal but inherently unequal. Thus, sanctioned and legal racism was stamped out by a future court righting the wrongs of a previous court. There was a new understanding and interpretation and it was decided that the precedent was wrong, so they fixed it and made it right. It took 58 years to make that morally wrong decision, morally right.

Today, some 43 years after the Roe vs. Wade court decision SCOTUS has a chance to right another wrong. A chance to reverse a precedent that has cost millions and millions of human lives – those of unborn children. A chance to stand on what is morally right, saving the lives of babies, instead of standing on what is morally wrong, killing babies. It doesn’t seem like this should be that tough of a decision. But, apparently it is.

Going against public opinion isn’t an easy thing and I am sure it wasn’t that easy in the Brown decision, but it was the right thing to do. Lots of things have changed in 43 years since Roe was decided. Healthcare, medical knowledge, and technology has gotten a lot better in those years, so denying that life starts at conception is backwards as saying the Sun revolves around the Earth.

The arguments from the liberal side of the bench were a little strange yesterday. Sonia Sotomayor is standing on precedent and arguing for maintaining the status quo simple so the court can take on the appearance of legitimacy? Isn’t it less legitimate if it doesn’t correct precedent and right a wrong? To me that seems like a weird argument to make when talking about morally wrong judgements. Can you imagine if the court argued in 1954’s Brown decision that they needed to keep the Plessy precedent to “survive” and remain legitimate?

Anyone else find that strange?

Anyone else care about this topic? What do you think?

Ultimately, precedent can be a positive way to look at pending cases and it can be used as a guide to current issues, but if precedent can’t ever be corrected (despite public opinion) it’s a dangerous thing to stand on.

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