Bench Memos

NRO’s home for judicial news and analysis.

More Disregard for Precedent


Red alert to the New York Times:  The disregard that some Supreme Court justices have for precedent evidently knows no bounds.  Here’s the latest evidence.


Fourteen years ago, in Smith v. United States, the Court ruled, by a vote of 6 to 3, that a person who trades his firearm for drugs “uses” that firearm “during and in relation to . . . [a] drug trafficking crime” within the meaning of 18 U.S.C. § 924(c)(1).  Justice Scalia argued in dissent that “[t]o use an instrumentality ordinarily means to use it for its intended purpose,” but the majority rejected what it evidently regarded as Scalia’s cramped textualism.  In the intervening years, Congress has left the Court’s interpretation in place, and that interpretation has been eminently workable.


In today’s ruling in Watson v. United States, the Court ruled unanimously that a person who trades drugs for a firearm does not “use” that firearm within the meaning of section 924(c)(1).  Eight justices were content to distinguish Smith, but one justice, embracing the reasoning in Scalia’s Smith dissent, expressly called for overruling Smith


What right-wing activist would show such contempt for precedent in a statutory case—where the force of stare decisis is generally regarded as greater than in constitutional cases, since the legislature remains free to correct the Court’s error?  None other than Justice Ginsburg.


More seriously:  Ginsburg’s entirely sensible opinion illustrates the elementary point that no justice subscribes to the exaggerated view of stare decisis that some on the Left invoke in an effort to preserve the ill-gotten gains from decades of liberal judicial activism.

Tags: Whelan


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