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Wednesday, January 25, 2006 

"Inexorable Command"

Prof. Althouse takes a look at that tricky little phrase that snuck its way into Senator Feingold's remarks at the Judiciary Committee vote yesterday. She reproduces part of Feingold's comments...
One important question that I had about Judge Alito was his view on the role of precedent and stare decisis in our legal system. At his hearing, while restating the doctrine of stare decisis, Judge Alito repeatedly qualified his answers with the comment that stare decisis is not an "“inexorable command."” While this is most certainly true, his insistence on qualifying his answers with this formulation was troubling. Combined with a judicial record in which fellow judges have criticized his application of precedent in several cases, Judge Alito'’s record and testimony do not give me the same comfort I had with Chief Justice Roberts that he has the respect for and deference to precedent that I would like to see in a Supreme Court Justice.
Then the professor shows that now-Chief Justice Roberts said the same thing when discussing stare decisis...
At the same time, as the court pointed out in the Casey case, stare decisis is not an inexorable command. If particular precedents have proven to be unworkable -- they don't lead to predictable results; they're difficult to apply -- that's one factor supporting reconsideration.
Alito said it "repeatedly" though. That's probably because he got the same questions and the same kinds of questions over and over again.

No one who is serious about Constitutional law can claim that stare decisis is an inexorable command. Cases can never be overturned?! Since when? Are these Democratic senators going to come out against the Lawrence decision? It overturned Bowers. Of course not. Why? They agree with the results of Lawrence. This is all about political results, not legal principles.

Senator Feinstein gets the honesty award for saying that her vote "no" was based on Roe. If that's the reason that you are voting "no", then say it and stand by it. Hiding behind a convoluted explanation is just weak.

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