The key lesson to be taken from the Supreme Court?s decisions this term is not that conservatives are in control of the court?that was plain already?but that they are willing to aggressively exercise this control to further the conservative agenda.
Stare decisis is, after all, the bedrock principle of the rule of law. Not only does it promote stability and encourage judges to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. ... As Justice Breyer rightly asked in dissent, ?What has happened to stare decisis?? Breyer correctly observed that Roberts had distorted the Court?s precedents, ?written out of the law? a host of Supreme Court decisions, and disingenuously reversed the course of constitutional law.
Piffle. Opi nionJournal.com reminds us of "the liberal majority's penchant for overturning precedents when it had the votes in recent years. Recall Lawrence v. Texas, which in 2003 overturned Bowers v. Hardwick and created a potential legal framework for gay marriage, and Roper v. Simmons, which in 2005 outlawed the juvenile death penalty and overturned 20 state laws."
I don't recall Tamanaha or Stone complaining about lack of deference to stare decisis when Lawrence or Roper came down. But now that their political ox is being gored, it's suddenly time for the court to be apolitical and modest.
I understand that liberal activists like Tamanaha and Stone think constitutional law should be like a ratchet wrench, able only to move leftward, but that's not what the Founders intended and it's not the way the system works. They just need to get over it.
Update: Besides which, their claims also seem factually dubious. As Mike O'Shea observes:
In the really big cases -- the CNN cases -- it's the Kennedy Court. ... As Lyle Denniston suggests, in the big cases he seems quite sensitive to the prospect that his work will meet with moral disapproval from the left. The biggest decision of the Term -- in the school case, PICS v. Seattle -- was also the only one in which Kennedy did a full-blown "O'Connor", watering down the conservative plurality opinion with an opaque, separate concurrence that agonizes over the competing interests and then declines almost every bright line that the plurality seeks to draw. Schools can use race sometimes -- more than the Chief Justice says -- but not here. The distinction between de jure and de facto segregation is very important -- but sometimes it can become blurred. Etc. Stuart Taylor's friend had a point when he groused, "Every sentence in [Kennedy's] opinion contradicts the sentence before it."
As I noted below, Kennedy arguably is the most powerful person in America. What's more, he's not a reliable conservative vote. As Volokh observes, Kennedy joined "the four conservatives 13 times, the four liberals 6 times, and no easily identifiable bloc 5 times" in the 24 5-4 cases in which he was the deciding vote.
Update: Apparently, I Wronged Prof Tamanaha.
