SCOTUS’ Selective Precedent

Justice Kagan doesn’t like it when her colleagues ignore precedent, at least a particular type of precedent.

She wants the decisions of the Warren Court to be set in stone. Almost anything else is fair game.

I have long argued that progressives are the modern conservatives. They seek to conserve the leftist revolution of the middle 20th century.

I once told one of my feminist progressive professors this when I was an undergraduate. She looked perplexed for a minute and then said, “Yes, I see your point. I want to conserve the New Deal, Great Society, and every progressive success of the last half-century.” She didn’t like being called a “conservative,” but her aim was always to conserve the power of the State, albeit for a leftist agenda.

Justice Kagan is no different. She recently complained that “conservatives” on the Supreme Court were ruining stare decisis.

That is a lofty Latin term for “precedence.” To Kagan, that means decisions she likes.

And she likes anything a progressive court has codified.

But the Court has routinely ignored precedence when they thought previous decisions came to the wrong conclusion.

That is why the Court is little more than nine politically connected lawyers who more often than not follow their own political agendas.

It’s also why we should never place our hope in the Supreme Court.

Thomas Jefferson certainly thought that was a very bad idea when John Marshall kept issuing rulings at odds with the original intent of the Constitution.

And he was mild compared to our modern day black-robed legislators.

Americans are slowly waking up to this realization. The left’s open call for “packing the court” has helped. You can’t hide a naked power grab by using that language.

Reason.com published a great piece on Kagan’s selective stare decisis a few days ago.

I cover it in Episode 448 of The Brion McClanahan Show.