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October 30, 2005

It's a Bird, It's a Plane... It's SuperPrecedent!

New York Times article about "super precedents," a new legal concept of sorts. Super precedents are like normal precedents, except they are very important to the "fabric" of our law, and are thus not entitled to mere stare decisis, but super stare decisis.

Liberals used to call these sorts of precedents "liberal precedents." I don't remember them arguing that Bowers v. Hardwick, or the long list of precedents that one could execute a 17 year old cold-blooded killer, were "superprecedents," or really any sort of real precedent at all.

The New York Times, shockingly enough, tries to make trouble for potential Supreme Court nominee Michael Luttig:

An origin of the idea was a 2000 opinion written by J. Michael Luttig, a judge on the United States Court of Appeals for the Fourth Circuit, who regularly appears on short lists for the Supreme Court.

Striking down a Virginia ban on a procedure that opponents call partial-birth abortion, Judge Luttig wrote, "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey," the case that reaffirmed Roe in 1992, "to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy."

Let's nip this one in the bud: He was saying it was his opinion that, as a judge inferior to the Supreme Court and charged to apply its precedents as they intended, he thought the Court intended itself to esptablish "super-stare-decisis." Not that he believes in such a thing, necessarily. Just that it was his job to do what the Supreme Court, and that the then-current O'Connor-led goofballs on the Court intended to create this new weapon, a +5 Holy Precedent, double-damage vs. rightwing troglodytes.

As a Supreme Court judge, he'll be deciding himself if he believes in "super-precedents."

Prof. Randy Barnett, a member of the Volokh Conspiracy, splashes cold water on this silly spark of imagination:

"The fact that something is a superprecedent doesn't give us a reason to stick to it if it's wrongly decided," said Randy Barnett of Boston University Law School...

Duh.

Seems to me Plessey v. Fergussen's separate-but-equal standard was a superprecedent with a long, multiply-reaffirmed history before, it you know, wasn't.


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posted by Ace at 07:49 PM

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