LogFAQs > #964931658

adjl posted...

If the precedent is overturned, it's going to be a very long time before it's re-established, especially given that the court that overturned it is very unlikely to reverse that decision.

I wouldn't be so sure. To me, the single most dangerous element of this decision, assuming it stands, is it deals the concept of stare decicis - the idea that a case, once decided, is settled law - a potentially fatal blow.

Stare decisis is the bedrock of any good legal system. It binds judges to accept and abide by precedent, whatever their personal feelings on the matter, unless an extremely compelling argument can be raised that the matter was both wrongly decided at the outset and that a substantial shift in public opinion has called into question the validity of the initial ruling (as was the case in, for instance, Plessy v. Ferguson or Dred Scott v. Sanford).

Neither has happened in this case. The question of the legality of abortion has been brought before the Supreme Court dozens of times and the rulings in its favour are multitude and unambiguous at this point. It's worth noting that nearly two thirds of the American populace - and 100% of all women of childbearing age who will be directly affected by this decision - have never lived in an era where abortion was outlawed anywhere in the US. No substantial shift in public opinion has taken place and, based on the most recent polls, the American public support Roe v. Wade remaining in force by at least a 2:1 ratio. This is judicial activism - "legislating from the bench" - in the most overt, explicit manner possible.

And, as the last few decades have shown, once legal and political "norms" are damaged, they tend to collapse almost immediately are seldom ever repaired. The minority party worked in good faith with the majority party to pass laws... until they didn't. Presidents were afforded the right to appoint people to judicial and executive positions and have them heard and confirmed by the senate in a timely manner... until they weren't. The senate focused itself on good governance and compromise to keep things running in an orderly manner... until it didn't. Supreme Court nominees were vetted on their qualifications and expertise, rather than their political opinions... until they weren't. Losers of elections conceded graciously and allowed the winners to take power peacefully and uncontested... until they didn't.

So add this one to the pile. The Supreme Court's function as an impartial arbiter of the law, unbound to political leanings, was already on pretty shaky ground for the last 15 or so years, but this is most likely the death knell (already visible in approval ratings for the court that have plummeted over the last couple of years). The Supreme Court will now be firmly acknowledged just another political wing of the US government and, accordingly, can expect to be treated as such, with all the political gamesmanship and shenanigans that entails. Packing the court, once a fringe idea, will continue to gain mainstream appeal until it is executed (and another norm will be stripped away) by a party sufficiently empowered by voters and annoyed by an activist bench. Settled law will no longer be considered such and everything will now be on the table. This includes sacred cows on both the left (the right to gay marriage, the right to organized labour, and the rights protecting minorities) and the right (the right to unrestricted personal firearms ownership, the right to unlimited political donations, the right to political gerrymandering). Expect to see several of these supposedly "settled" cases be re-decided in the next few years, using the exact same language as this decision.

This is honestly a lot more dangerous of a decision than most people appreciate. Agree with Roe or don't, that's your business, but to straight-up overrule such a fundamental piece of American jurisprudence based on nothing but personal political conviction is a kicking a hornet's nest of almost unprecedented scale. And once it is done, there will be no getting the genie back in the bottle - this will be the norm for years to come.