Stare Decisis is Like a Street Sign: "Drive Only On the Left!", Part II

By Rich Kozlovich

The Washington Post reported that the Supreme Court’s conservatives overturn precedent. Of course this means liberals are now going to start panicking because they have to wonder which ruling will they overrule next.  The article went on to say:

"The Supreme Court’s conservative majority overturned a 41-year-old precedent Monday, prompting a pointed warning from liberal justices about “which cases the court will overrule next.”

It was a 5/4 decision overruling a 41 year precedent regarding the concept that States had sovereign immunity from other States and whether they could be hauled into court by other States. The 1979 ruling claimed “there is no constitutional right to such immunity."

The article goes on to say:

The “new conservative majority conservative majority overruled that decision, saying there was an implied right in the Constitution that means states “could not be hauled involuntarily before each other’s courts,” in the words of Justice Clarence Thomas, who wrote Monday’s decision. Thomas acknowledged the departure from the legal doctrine of stare decisis, in which courts are to abide by settled law without a compelling reason to overrule the decision.”  But he said the court’s decision four decades ago in Nevada v. Hall “is contrary to our constitutional design and the understanding of sovereign immunity shared by the states that ratified the Constitution. Stare decisis does not compel continued adherence to this erroneous precedent.”

Justice Breyer claimed it was “dangerous” for the court to change the rules with just five justices in agreement. Breyer believes “Stare decisis requires us to follow Hall, not overrule it,” In short, stare decisis should hold no matter how flimsy the grounds were for the original decision, or how radical was the design of the Court at that time. Breyer worried:

“Today’s decision can only cause one to wonder which cases the court will overrule next.” 

Dangerous!  Really?  To whom?  There is a compelling reason for overturning these kinds of rulings and that is the continued destructive direction the federal government and the federal judiciary have taken that have consistently eroded what was clearly understood as state's rights from the founding of the Constitution. 

The fact some things weren't spelled out was because some things were clearly understood by the founders, the States and society as a whole, and it never occurred to them it had to be spelled out.  

Abortion became a right because the Supreme Court found a right of privacy in the "penumbra of the Constitution" that allows mothers to murder their unborn innocent children.  That never appears in the Constitution, or can anyone demonstrate how it's implied in the Constitution through the practice of time, and this is a "right" the Founders would have been aghast at.  If you read the Constitution you will find there is no section defined as the "penumbra".   Tell you what.....we'll come back to that.

In my February 21, 2019 article, Stare Decisis is Like a Street Sign: "Drive Only On the Left!", I stated:

These leftist justices have overturned “stare decisis” over and over again, and have been lauded by the very leftists who claim to adore the concept. Let's try and get this right - "stare decisis" - is not written in stone and the only reason to openly support it as something that’s “sacred” is nothing more than a public relations scam by anyone involved in politics or law. The left only 'adores' the concept if someone supports any of the leftist decisions that overturned "stare decisis" decisions of the past.

But I have to think Judge Thomas’ view has logic and history on his side when he says:

“the states’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.”

Although isn’t directly addressed in the Constitution it certainly is implied. He says:

“there are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice.”

Leftist judges have been overturning rulings and understandings that stood for decades.  All done without a whisper of concern about precedent, especially the precedents established by history and practice for over 150 years. They have twisted the plain language of the Constitution to create rights that were never stated in the Constitution, claiming these rights were "implied" by the "penumbra" of the Constitution.

I went on to say in my article:

"Any effort to overturn leftist decisions that have no Constitutional basis other than what's called the "penumbra of the Constitution" is sacrilege to the law and the Constitution according to the left."  

"In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights. These rights have been identified through a process of "reasoning-by-interpolation", where specific principles are recognized from "general idea" that are explicitly expressed in other constitutional provisions......."

"An open ended concept that allows for abuse!"

It's time for those abuses to be overturned.