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Posted by Stuart Bronstein on May 22, 2008, 1:01 pm
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>> In my opinion [J. Thomas] has no respect for precedent
>> because he won't follow any rule or ruling that doesn't
>> agree with his personal view of constitutional
>> jurisprudence. It doesn't matter that something has
>> been an accepted rule for many years. It doesn't matter
>> that great thinkers believe the Constitution means something
>> that conflicts with Thomas's ideas. To him he's the only
>> one in the world whose opinion counts.
>
> To suggest a Justice ignore his or her own logic and
> interpretations and defer to others is inconsistent with why
> we have nine Justices; judicial tenure; a multi-leveled
> federal court system; etc. Stare decisis is a strongly
> preferred guide, but history shows that the Court can and
> will, after careful consideration, overturn past decisions.
> The law ultimately reflects society's mores, which do
> change, surely as you know.
There are certain conventions in the law that are generally accepted as
important in our legal system. One is that there be predictability in
the meaning of our laws. Except when an established interpretation of
a law is manifestly harmful to society, changing the law is up to the
legislature, not to the court.
Additionally, as you say, times change and the interpretations of laws
change based on society's beliefs and past experience.
But Thomas seems to reject all of that. He rejects predictability, he
rejects the concept of changing rules only when necessary. And he
rejects the idea that times change and that rules should change, basing
his decisions on what he thinks the rule should have been in 1789.
> One cannot single out one Justice for not following stare
> decisis (from time to time) when so many other Justices have
> done likewise, and often to good effect, given our bumbling
> society.
Certainly on occasion other justices have voted to over turn precedent.
But most often they attempt to follow precedent and distinguish cases
based on other facts or applicable laws. They believe in
predictability and don't throw out the whole system based on their
beliefs that they are the one true source of knowledge, rather than
interpreters of it.
Stu
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