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Comment by blinkingled | Hacker News Reader

Biggest thing to me is the message this sends - that there is no settled law really - I think the notion that nothing is legally set in stone and change is only a relatively easy matter of installing supreme court justices siding with your beliefs - that's gotta have some chilling consequences down the line for the country as a whole.

Greater progress requires building upon smaller progress, a settled foundation. If the foundation is constantly under churn you can reasonably expect constant regression.

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Plessy v. Ferguson was settled law. Until it wasn't. And it was rightly overturned after decades of injustice. I bet there were many in the 50s who cried about settled law. Basically, the stare decisis argument is very limited, and the best anyone can hope for is that stare decisis is time-limited. Plessy lasted 64 years, while Roe lasted 50. So stare decisis seems to mean "for a few decades", which I think is fair.

Stare decisis is neutral as to the content of court decisions. It can be used to sustain rightly and badly decided rulings for decades. And the court can ultimately overturn its past decisions rightly and wrongly. They can fail in the past, they can fail in the present, and they can fail in the future.

Which was overturned in Brown by a unanimous decision. Typically the standard for overturning a case is high: either it is recent and clearly wrong, or there is a high level of consensus on the case. This is neither.

Stare decisis is not a time limit. It just means there has to be a very good reason to overturn. There is no such reason to overturn Roe v Wade, which is obvious by the split in the ruling.

Fair point of course - but the devil really is in the details - of how far we stretch, how often, which way we change - towards correcting or regressing, and on what is open to debate vs what is not. This combined with the other things opened up for debate - same sex marriage, inter-racial marriage, contraception etc. makes one feel like everything including slavery being illegal/immoral can be soon up for discussion.

You think think that Clarence Thomas would declare the 13th and 14th Amendments null and void? What?

Well they can "return it to the states" to decide after a creative re-interpretation. Nothing is settled after all. And what I was really saying was that even if 13th and 14th aren't voided in our lifetime, there are other easier targets - same sex marriage and contraception namely that would further cement the idea that everything is hackable to your beliefs (without even needing unanimous SCOTUS decision to undo long established precedents) using this recipe - when what one would treat settled and what one wouldn't is never clear everything is unsettled and open to hacking away.

Sounds ridiculous but look at gun rights - Scalia said Second Amendment applies to individuals, but the decision would not affect other gun safety regulations. Now we have the SCOTUS expanding gun rights at the expense of states' rights and their safety regulations.

Could Congress maybe make a law stating precedents will not be overturned unless there is unanimous assent? That might make some things somewhat better for the foreseeable future.

They've already declared significant limitations to the Fourth Amendment that apply to nearly every major city in the US. What's stopping them from going after others?

Yes, I think that's true. The Justices should stop imvoking the constitution in long legal ramblings and just say: "Our predecessors thought one way. We're different people and we think another way. Also, if you don't like it you can fuck off."

It would be so much more honest.

The same could be said of RvW - inventing new laws was simply the case of installing new justices - the constitution has existed much longer than RvW, so removing it isn't as much a problem for "settled law" than creating it in the first place.

And I think the point here was that RvW was not on strong settled foundations.

Constant regression is the point, for some 35% of the population.

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