Friday, January 20, 2006

 

Mike Kinsley says he's a liar. I'll take his word for it.

Over at Bench Memos on National Review Online, Ed Whelan has a pretty good take down of Mike Kinsley's op-ed in today’s Washington Post. In addition to the subjects of Ed’s criticisms, I found myself fixated on this gem:

“And, finally, even Supreme Court justices are bound to some extent by the doctrine of stare decisis, which is the judicial equivalent of papal infallibility.”

I don’t want to be too hard on Mr. Kinsley; after all, that may very well be what they taught him at Harvard Law but let’s be clear: the doctrine of stare decisis (which I’m guessing is Latin for “Roe v. Wade”) is the judicial equivalent of …… stare decisis. Stare decisis is a tool and a symptom. It’s a tool for judicial efficiency – we don’t want to have to continually re-invent the wheel. But if the wheel resembles an oblong then out it goes and we get one that works. And it’s a symptom because one would hope that judicial decision-making would stand the test of time and reflect a constant set of underlying principles. But it emphatically is not a judicial version of the “rule of perpetuity”….but who knows if they even taught that rule at Harvard.


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