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.
“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.
