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.”
It depends because Collins and too many of her Senate colleagues instead of having a consistent,
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.
