347. Intellectual dishonesty watch - Details

A few weeks ago I suggested, at tedious length, that the patron saint of all that is twinkly, Irish and liberal about the American judiciary appeared in public badly underdressed at certain points during his long career.  (See post 337, post 338, post 339 and post 340.)  So, to even the score, its time to turn attention to that lowering vulture of American judicial conservativism, the late Chief Justice.  But this time, as Louise Lasser said, with great pith.

In 1992, anti-abortion activists made a big swing at Roe v. Wade but - to the tremendous subsequent benefit of the religious right, which came within an eyelash of losing its defining issue - missed, thanks to the apostasy of Justices OConnor, Kennedy and Souter, who voted just like all those suburban Republicans who are ideologically committed to banning abortion so long as there is no realistic possibility of it actually being banned. 

OConnor, Kennedy and Souter - who were chicken-hearted enough to publish a "joint opinion", so no one of them could be blamed - argued that the Courts legitimacy (by which they meant the willingness of Americans to be dictated to) would suffer if it were to "surrender to political pressure" by overruling Roe v. Wade.

Rehnquist wrote a bitter dissent, alternatively mocking and deriding the three justices professed devotion to the principle of stare decisis - that is, adherence to prior decisions.  Rehnquists opinion goes on and on.  Heres a handful of representative snippets:

The joint opinion of Justices OConnor, Kennedy, and Souter cannot bring itself to say that Roe was correct as an original matter, but the authors are of the view that "the immediate question is not the soundness of Roes resolution of the issue, but the precedential force that must be accorded to its holding." ...

[It is] our duty to reconsider constitutional interpretations that "depar[t] from a proper understanding" of the Constitution. ...  Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question. ...

But this perceived dilemma arises only if one assumes, as the joint opinion does, that the Court should make its decisions with a view toward speculative public perceptions. If one assumes instead ... that the Courts legitimacy is enhanced by faithful interpretion of the Constitution irrespective of public opposition, such self engendered difficulties may be put to one side. ...

Fast forward eight years.  In his opinion declaring that the Miranda warnings are actually required by the Constitutions amendment V.V (see post 275) -  the one between V and VI that was omitted from so many copies for so many decades due to a printers error back in Philadelphia in 1791 - Rehnquist wrote:

Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.  ... 

We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. ...

So speculation about public opinion is utterly unacceptable as a tool of constitutional decision-making, while speculation about our national culture is A-OK.  Everyone clear on that? 

In abortion cases, its wrong for justices to adhere to precedent unless convinced of the correctness of the original ruling.  In criminal cases, it doesnt matter whether the adherents agree with the adhesive in question.  

And, you know, thats clear enough, too, really.