Bench Memos

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Schumer vs. Alito


Ramesh hasn’t yet elaborated on why he thinks Sen. Schumer scored some points in his questioning of Judge Alito, but I’ll offer one thought of my own along those lines. Schumer succeeded in inducing Alito to say something terribly wrong (in my opinion, as explained here yesterday) about precedent: “I don’t agree with the idea that the Constitution always trumps stare decisis.” Last time I checked Article VI of the Constitution, it said that the Constitution is the “supreme law of the land,” trumping everything including yesterday’s Supreme Court decisions when a good-faith revisiting of the same issues leads to the conclusion that they were wrongly decided. Stare decisis means taking precedents seriously as representing the best thought of the past on similar questions once again before the Court; it also means following those precedents when possible, especially in doubtful cases, for the sake of stability. It does, cannot, mean prizing stability over a considered judgment, free of doubt, about the meaning of the Constitution. But that’s what Alito appeared to say. Perhaps he would modify the remark if given a chance.

I’ll have more to say in the morning on Bill Bennett’s show during the 8:00-8:30 time slot EST.


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