27 June 2003

Justice Scalia's view of the future of the law in this area clearly has a "same planet, different world" sort of feel when compared with the majority's view. Whereas Scalia sees this ruling as the first step in a downward spiral of judicial inconsistency and legislative disempowerment, Kennedy sees it as the first step toward a more modern view of individualized freedom and liberty. Who is right? No one today can say. I suppose that's one of the many things that keeps the Supreme Court such a fascinating body to watch from term to term.
I can say. I've not read the case yet but it appears that Scalia is on the mark. Stare decisis, the bedrock upon which Casey was decided seems to have turned into sand at the behest of an ever left-leaning court.

It really does feel as though the Court has slipped back into the mode of legislating mores. It's fun to read Scalia's dissents in these matters as he rips into the false reasoning and hypocrisy behind result oriented decisions. However, it feels as though he has entirely lost the ability to persuade. They certainly aren't changing any minds on the court.

Personally, I am very disturbed by the weakening of stare decisis. It opens a whole new world of argument wherein the parties pay far less attention to the law as it has been and lends itself to arguments based upon what the parties believe the current members of the court, with their current dispositions, will render constitutional.


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