Posted 11/09/2004 05:42:00 PM by Douglas

A week after the election and the political fur is already flying. First off, you've got Ashcroft resigning but really, who is upset with this one? The big deal that has liberals across the nation shaking in their Birkenstocks is that Bush is going to replace a few of the supreme octogenarians with some kind of cybernetic hybrid of John Birch and Peter Pan. Someone who will live forever and thinks the staff at National Review are a bunch of liberal pussies (they are, but that's another rant.)

For some reason, I found this article fascinating, but not only for its content, but for the things it doesn't say. [via Ann.]

A little-noticed bombshell was dropped by Justice Antonin Scalia in a recently released biography of Justice Clarence Thomas. It poses an interesting dilemma for President Bush this election season, in that it raises the question of whether he should continue to cite Thomas as one of his model Supreme Court justices.

But Scalia's pointed comments to Foskett complicate Bush's support for Thomas considerably. Specifically, Scalia told Foskett that Thomas "doesn't believe in stare decisis, period." Clarifying his remark, Scalia added that "if a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."

Stare decisis is a fancy Latin term that stands for a bedrock proposition of U.S. law: that the Supreme Court will uphold precedent and not disturb settled law without special justification. As Justice Thurgood Marshall explained for the court in 1986, stare decisis is the "means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion."

First off, that's the Court's job. Hear cases, establish case law, and interpret/adapt old laws that were either wrong from the beginning, or need to be amended to adapt to our present circumstances. So what does Scalia hold stare decisis with such veneration, when it would appear from this article that Thomas wants to throw it out the window with last month's cheese? There's nothing magical about a court's opinion, and when they're blatantly wrong, such as the case of Plessy, or even more egregiously, the ill-famed Dred Scott Decision, which were both perfectly Constitutional at the time, it's the Court's duty to stare precedent in the face and say just how wrong it is.

So why is this a "little-noticed bombshell" that Thomas might be more apt to review old cases? Are most Post readers concerned with retroactive punishments in civil trials and interstate commerce? Of course not, but is there a certain controversial Supreme Court decision from about 30 years ago that has since become central to the Democrat's agenda? There sure is, and I'm sure if Thomas got his way, Roe v. Wade would soon become alternative ways of crossing the Potomac (I never tire of that joke).

I don't know if Thomas has a chance of making it to Chief Justice, but I find it amusing that the Post is using issues that no one really cares about to sandbag him before he's even in the running. Why obfuscate it? Just come right out and say he's willing to hear arguments towards the constitutionality of Roe v. Wade. It certainly isn't going to make the liberals hate him more. Scalia either, for that matter.