Stare decisis is an imposing term. It sounds like it carries great authority. Literally, it means "to stand by that which is decided." Now, if we applied it to the U.S. Constitution and the duly passed amendments to that document, stare decisis would be an instrument of maintaining order in a democratic republic. However, the term as used by Liberal-Leftist-Progressive-Socialist-Democrats, has come to mean "a previous group of arrogant oligarchs ignored the Constitution and ruled according to their Leftist philosophy, therefore any attempt to correct that wrong is "judicial activism."
Today, during a radio newscast about John McCain's decision to vote against Sonia Sotomayor's nomination to the Supreme Court, a pro-Sotomayor senator was quoted who disputed the accusations that she is a judicial activist. No, Sotomayor is NOT an activist. The senator assured us that Sotomayor is a big believer in state decisis. Well, I feel sooooo much better! Of course, the Senator did not claim the justice-in-waiting would be a champion of the Constitution.
Judicial activism is a meaningless term without context. At one time, this term was applied to those who sought to create their own law without the Constitution's approval. Think the majority in the laughable Roe v Wade decision. They made up a constitutional right to kill a baby.
Many Conservatives still use the term "judicial activism" as a general statement of what is wrong with the federal courts. The problem is that they are several decades too late. The Supreme Court has been activist in an anti-Constitution sense for so long they have taken over the meaning of the term. Now, judicial activism is used to describe those who want to RETURN to the Constitution. Yes, in the Bizarro world that is the mind of the modern Liberal-Leftist-Progressive-Socialist-Democrat preserving the U.S. Constitution is judicial activism.
In the year of our Lord 2009, it is time Conservatives embrace judicial activism and make it a goal for future federal judges. The math is simple: in terms of legal importance, stare decisis is less valid than the U.S. Constitution. The language needs to be clear. Any nominee to the federal courts should be asked to define judicial activism. That does not require them to discuss issues that might be heard in a case. It does require a would-be federal judge to publicly state whether they put the decisions of previous courts ahead of the U.S. Constitution.
I tend to agree with the senator who said Sotomayor will be faithful to stare decisis. However, during her hearings, Sonia Sotomayor stated that the Constitution should come first. Stare decisis and the Constitution are often polar opposites. She will be confirmed. However, it will be interesting to see if she will be honest when she takes an oath to uphold the Constitution or if her liberal ideology will be her judicial beacon.
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