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Obamacare and Benghazi, at Powerline and NRO

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Two must-reads from my pals at Powerline, and three from NRO.

First, Scott Johnson is skeptical of George Will’s hope that the Supreme Court will save us from Obamacare endless chewing up of the economy, American healthcare, and our politics.  I reserve judgment until Hobby Lobby is handed down and then will reassess whether the Court might try and extricate us from this fiasco.  Folks hoping that Will is right ought to reread the Chief Justice’s concurrence in Citizens United on when stare decisis ought not to control:

      Stare decisis is instead a “principle of policy.” Helvering ,supra , at 119. When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right . As Justice Jackson explained, this requires a “sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other.” Jackson, Decisional Law and Stare Decisis , 30 A. B. A. J. 334 (1944).

     In conducting this balancing, we must keep in mind that stare decisis is not an end in itself. It is instead “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.” Vasquez v. Hillery474 U. S. 254265 (1986) . Its greatest purpose is to serve a constitutional ideal—the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.

     Thus, for example, if the precedent under consideration itself departed from the Court’s jurisprudence, returning to the “ ‘intrinsically sounder’ doctrine established in prior cases” may “better serv[e] the values of stare decisis than would following [the] more recently decided case inconsistent with the decisions that came before it.” Adarand Constructors, Inc. v. Peńa 515 U. S. 200231 (1995) ; see also Helvering supra , at 119; Randallsupra , at 274 ( Stevens , J., dissenting). Abrogating the errant precedent, rather than reaffirming or extending it, might better preserve the law’s coherence and curtail the precedent’s disruptive effects.

     Likewise, if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisiseffect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake. See, e.g., Pearson v. Callahan, 555 U. S. ___, ___ (2009) (slip op., at 10);Montejo v. Louisiana, 556 U. S. ___, ___ (2009) (slip op., at 13) (stare decisis does not control when adherence to the prior decision requires “fundamentally revising its theoretical basis”)….

      To the extent that the Government’s case for reaffirmingAustin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

     Doing so would undermine the rule-of-law values that justifystare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect.

Also from Powerline, John Hinderaker’s take on the possibility that Democrats will boycott the Select Committee on the  Benghazi attacks, and from NRO, Jonah’s summary of all things Benghazi, Andrew McCarthy’s key question (McCarthy is my choice for chief counsel on the Gowdy Committee) and NRO’s editors’ collective view of the revelation of the Rhodes memo cover-up and all that it launched.


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