MEDITATION NUMBER ONE:
ON STARE DECISIS

From the LAW.COM Dictionary:

stare decisis
: (stah-ree duh-sigh-sis) n. Latin for "to stand by a decision," the doctrine that a trial court is bound by appellate court decisions (precedents) on a legal question which is raised in the lower court. Reliance on such precedents is required of trial courts until such time as an appellate court changes the rule, for the trial court cannot ignore the precedent (even when the trial judge believes it is "bad law").

For the Supreme Court, stare decisis means that current decisions are bound by past Supreme Court decisions--the Court can only overrule its own past decisions under very specific circumstances. Scalia asserts that, in the Lawrence case, the Court has thrown precedent to the wind. In order to illustrate the majority’s inconsistent use of the principle of stare decisis, Scalia tries to show that the standards used by the Court’s majority to overturn the Bowers decision can also potentially be used as standards for overturning 1973’s abortion-legalizing Roe v Wade decision.

According to Scalia, these are the standards:

1. The precedent has been eroded by subsequent cases.
2. There has been substantial criticism of the original decision.
3. The original decision hasn’t induced “individual or social reliance” that counsels against overturning.

Not being a lawyer, I’ll have to take Scalia’s word that the first point is true: abortion rights have also been eroded by subsequent cases (he cites Casey v Planned Parenthood as an example). I agree with him on the second point—both Bowers and Roe have been heavily criticized for years.

The third point is where Scalia gets a bit wacky. To him, there is no “individual or social reliance” on abortion rights. He asserts that banning abortion would only be a return of the status quo; women could still cross state lines to get abortions. On the other hand, Scalia believes that because sodomy crimes are still prosecuted, there is a “social reliance” on the anti-sodomy laws.

However, American women DO rely on abortion rights—traveling great distances is no obstacle to a man of Scalia’s means, but most women cannot so easily hop a flight or a bus to a more civilized state. His assertion that banning abortion would cause no social disruption is absurd (leave it to a man to always know what’s best for women). Perhaps Scalia is right about the courts and prosecutors relying on anti-sodomy laws, but “reliance” here is used in a perplexing way, especially because Scalia, himself, notes that there are not many sodomy prosecutions. At the very least, Scalia shows a possible reliance of the judicial system on anti-sodomy laws, but certainly not a social reliance. In fact, it would not be an exaggeration to say that gay people engaging in sodomy inside their homes cause absolutely no social disruption at all. Furthermore, given that there is no demonstrable social harm caused by sodomy whatsoever, it seems to follow that anti-sodomy laws do nothing but waste the court’s time, energy, and money. That is, the courts, in fact, do not rely on anti-sodomy laws; rather, the laws are a legal hindrance.

Saying that overturning the anti-sodomy laws would disrupt the legal system is like saying that ending crime would disrupt the legal system. It makes no sense at all. Reading between the lines shows that Scalia is far more concerned with tradition (that is, conservative values) than justice.