Gonzales: SC Judges not obliged to follow precedent if beliefs conflict

[BurtWorm]

http://www.nytimes.com/aponline/national/AP-Gonzales-AP-Interview.html?pagewanted=print

July 26, 2005
Gonzales: Roberts Not Bound by Statement
By THE ASSOCIATED PRESS
Filed at 1:55 p.m. ET

WASHINGTON (AP) -- If confirmed to the Supreme Court, John Roberts would not be bound by his past statement that the 1973 decision legalizing abortion is settled law, Attorney General Alberto Gonzales said Tuesday.

Roberts testified before Congress in 2003 that he considers the Roe v. Wade decision ''settled law.'' At the time, he had been nominated for the seat he now holds on the U.S. Court of Appeals for the District of Columbia Circuit.

But Gonzales, in an interview with The Associated Press, said circumstances had changed. ''If you're asking a circuit court judge, like Judge Roberts was asked, yes, it is settled law because you're bound by the precedent,'' Gonzales said.

''If you're a Supreme Court justice, that's a different question because a Supreme Court justice is not obliged to follow precedent if you believe it's wrong,'' Gonzales said.

...

[fooj]

1. My God. Do they ever stop?

Peace.

[elehhhhna]

2. Geez-first Al admits the head start on Plamegate, then this!

He really IS pissed at not getting the nomination to USSC!

[msanthrope]

5. Rat off the ship, isn't he? n/t

[ibegurpard]

3. What I find astounding

is that people would actually need to have this point explained to them. Did they stop teaching Government in schools?

[Nicholas D Wolfwood]

6. Please, look at these boards.

Even here on DU, few understand how our government works.

[mondo joe]

9. At times likethis I feel scared and isolated because the very people

I think will best understand law and government are sofar from the mark.

How on earth can the point about SCOTUS overturning precedent even NEED to be explained on DU?

[BurtWorm]

10. Do we want justices who will disregard precedent on the court?

Even if a justice disagrees with precedent, isn't he or she obliged to root their decisions or dissents in case law?

[mondo joe]

12. Not necessarily. Or do you disagree with Lawrence v Texas in which

anti-sodomy laws were overturned and precedent overturned?

[BurtWorm]

16. Were they overturned arbitrarily, or did the court have to show

which other precedents justified its decision?

[mondo joe]

26. The SCOTUS is not bound by precedent - it MAKES the

precedent. It is bound by the Constitution (or its interpretation of the Constitution).

[BurtWorm]

33. Right. I got what you were saying.

[eleny]

4. And the Dems don't want to fight his nomination?

I'm so disgusted by this issue it's hard to find the words. This is such a betrayal of women's rights.

Welcome to the future of America

[fryguy]

7. so much for stare decisis

how many other rulings are they ready do away with?

[mondo joe]

8. He's correct on this. I don't see why it would surprise anyone.

The SCOTUS is the final arbiter. If appointed to a lower court one must ultimately work within established law. But the SCOTUS can change precedent, though it happens rarely.

And no one - least of all Dems - wants a SCOTUS that can't change precedent.

[BurtWorm]

11. The final arbiter, yes, but they can't make it up as they go along

can they? I mean of course they can, but that's not what we want in a justice. We want someone who understands the law as it's been adjudicated. We don't want arbitrariness, do we?

[mondo joe]

13. To some degree they are making it up -or at least interpreting.

We want someone who understands the law. Not someone on the SCOTUS who is a slave to precedent.

Don't forget, in many cases the decision is a narrow majority - that means at the time of the decision the justices disagreed. It could almost as easily have gone the other way. So there was often not an overwhelming consensus to begin with as to the basis for the judgment.

Don't forget, at least 2 SCOTUS decisions liberals tend to favor did overturn precedent: Brown v Board of Education and Lawrence v Texas.

[BurtWorm]

15. But they had to be based in something other than gut feeling, no?

I think what seems alarming about the Gonzales quote is the idea that "personal belief" might have more bearing on a case than the law itself. Granted, I'm not a lawyer, and I didn't take Civics in high school (it wasn't even offered at my high school). But it seems to me that you don't want someone who is not answerable to voters making final decisions on cases based on how he or she feels about an issue. When the SC sets precedent, it still has to do it by referring to precedent to explain its reasoning. The public is not served by a court that can say, "We overturned this law because Jesus told us to."

[mondo joe]

27. They're based on the interpretation of the Constitution held by the

current court.

Not by Jesus, not by gut feeling, but by the Constitution. And then we get back to what I pointed out previously - decisions are often close, and a different court may feel differently.

[Zynx]

14. News Flash: He's right. SCOTUS can do whatever it wants.

I don't see why people are saying this is so extreme.

[leesa]

17. Must be more of those "quaint" rules. Where did this guy get his

law degree??? So if a SC justice doesn't believe it, they can ignore precedent?

[mondo joe]

32. How do you feel about the Court overturning laws against sodomy?

Or overturning legal segregation?

Of course the SCOTUS is not required to follow precedent. It SETS precedent.

[DefenseLawyer]

34. It is not an incorrect or outrageous statement

as has been said by several here already. The Supreme Court does not "ignore" precedent, they create precedent. As such, when an issue that was decided by the Supreme Court in one term is brought back before the court in another term Justices are free to conclude that the previous decision was wrongly decided and overturn the prior holding. There have even been examples of a justice changing his mind about his own position on an issue, causing a shift which overturns a previous ruling. There is nothing stupid or nefarious about that statement, it is a benign statement of fact.

[geek tragedy]

18. Just stating the obvious. The SCOTUS can rule however it wants.

Following past precedent, even if they think it's incorrect, is not a constitutional requirement for justices.

[BurtWorm]

19. When was the last time SC justices made a ruling without referring to

precedent? Even in Bush v. Gore they pretended to be guided by some kind of precedent, didn't they?

[geek tragedy]

22. They point to trends in case law--or other excuses. But they can

do a 180 at a moment's notice.

Brown v. Board of Education was a direct overruling of Plessy v. Feruguson.

[BurtWorm]

23. Okay, I see what you all are saying.

But they certainly wouldn't legitimately be able to say, "Jesus told us to overturn Roe." Right?

[geek tragedy]

24. No, just that Roe was decided incorrectly. Precedent is a tricky issue--

one doesn't want to say that bad decisions can't be overruled, but at the same time it doesn't look good for the court to flip-flop every ten years--that undercuts the legitimacy of their rulings.

[BurtWorm]

25. Prezackly. So they do have to have some respect for precedent.

They can't just say, we threw a dart and it landed on "overrule."

Suppose a nominee were to say what Gonzales said for Roberts. Suppose the nominee were a Democrat. Would they make it out of committee?

[geek tragedy]

28. Yes. He didn't say anything that people didn't already know.

As a Circuit Court judge, he had no choice but to follow Roe. As a justice of the SCOTUS, he'd be under no such obligation.

[mondo joe]

29. They don't HAVE to respect precedent. But it's in the interest of the law

to NOT be flip flopping all over the place.

Of course the original precedent was presumably a sound decision to begin with, so there's not much reason to be overturning it in most cases.

Again, you don't want the SCOTUS to be a slave to precedent - you do want them to adhere to constitutional principles.

[alarimer]

20. This is outrageous!!

These people are so fucking evil. All of law is based on precedent, not necessarily on the personal beliefs of the judge. Would Gonzalez say the same thing if a liberal judge decided to do something based on personal belief, not on precedent? Oh wait, when a liberal does this it is called "being an activist judge" but when a Repuke does it it's AOK???

Fuck these people; I realy, realy hate them.

[mondo joe]

31. What about this is outrageous?

The decisions of the SCOTUS are supposed to be based on the Constitution - not necessarily precedent.

[alarimer]

35. What is outrageous

is that if a liberal did it, the assholes would be screaming to high heaven. this just gives cover to whatever evil schemes Roberts has. And he is an evil right wing prick.

[mondo joe]

36. If a liberal did WHAT? Overturned precedent? Or stated that it could be

overtuurned? Both have happpened - and some of the time the cons did indeed flip out.

[Hosnon]

21. What is so amazing about that? nt

[Deja Q]

30. They'll need troops in 10 years.

Even though the troops may not be in good conditions due to piss-poor conditions...