In connection with the Kennedy retirement and President Trump’s forthcoming appointment of a new justice to replace him, Senator Susan Collins (“R”-ME) has again arisen from much deserved obscurity to the role of judicial kingmaker.
With the Republicans’ razor-thin majority in the Senate, a Collins defection could deliver a mortal blow to the President’s nomination of Kennedy’s successor.
Plainly mindful of her once again increased power, last week Collins was quoted as saying “[a] candidate for this important post who would overturn Roe v. Wade would not be acceptable to me.” OK. Understood. That’s her choice [pun intended]. Collins continued: “That would indicate an activist agenda that I don’t want to see a judge have.” [She meant a justice.] Doesn’t she like judicial activism? Not at all, continuing with the statement “that would indicate to me a failure to respect precedent.”
Ah Ha! Who would have thought that Senator Collins — in her across-the-bow warning shot to the President and Senate Majority Leader — believes in the doctrine of stare decisis, a Latin term meaning “to abide by, or adhere to, decided cases.” Well, at least she believes in it as applied to the constitutionally indefensible Supreme Court decision in Roe v. Wade (abortion).
Collins was really saying that she believes in the precedent doctrine when it suits her. Among the over 200 Supreme Court decisions expressly and by implication overruled by the justices, let alone those not overruled but substantially weakened, we didn’t hear Collins complaining when in 2015 the Court overruled Baker v. Nelson in the same-sex marriage case of Obergefell v. Hodges. The need to “respect precedent” went under the bus when a more important value of the Senator’s was at stake.
One wonders if her alleged respect for precedent would have allowed the infamous Dred Scott decision to stand. Or Plessy v. Ferguson’s validation of the pernicious “separate but equal” doctrine? Or Lochner v. New York’s defense of freedom of contract?
What side would the precedent-respecting Senator have been on in the equally infamous Reynolds v. United States (polygamy), Selective Draft Law Cases (conscription), and Korematsu v. United States (racism) cases?
The answer to these questions is “it depends.”
defensible jurisprudential position on the stare decisis principle instead believe in identifying cuis bove cornu est. In the end, that's all they want to know, not whether cases like Dred Scott, Reynolds, Plessy, Selective Draft Law Cases, Lochner, Korematsu, Roe and Baker were properly decided pursuant to the meaning of the Constitution and should live or die depending on whether they meet that fundamental test.
Senator Susan Collins and most of her colleagues apply a
different test: Whose ox is gored.