From the USA

Bad precedent and wayward judges

By Judge Roy Moore

August, 2007

"They be blind leaders of the blind. And if the blind lead the blind, both shall fall into the ditch." When Jesus spoke those words, He warned of the danger of following leaders who taught false doctrine. But Jesus did not say that we should reject the instruction and example of those who adhere to sound principle.

In our court system, judges must base their decisions on sound legal principles. High regard for following prior judicial decisions, known as precedent, has always been an important concept in our law, but such precedents are only valid if based on the United States Constitution, which all judges are sworn to uphold. Lately, there has been a great deal of criticism of the new "conservative majority" on the United States Supreme Court for disregarding "long-standing precedents" and "running roughshod over the Constitution." I submit that such criticism is wrong.

In her dissent in Gonzales v. Carhart involving partial-birth abortion, Justice Ruth Bader Ginsburg, a former ACLU lawyer, complained that for the majority of the justices "moral concerns are at work, concerns that could yield prohibitions on any abortion. ... By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent." In another Supreme Court case involving the use of race in public school assignments, another liberal justice, Steven Breyer, echoed this theme when he remarked from the bench, "It is not often in the law that so few have so quickly changed so much."

Court rulings must be consistent for the fairness and impartiality of our justice system. In the words of that eminent jurist Sir William Blackstone, author of the "Commentaries on the Laws of England" in 1765: "It is an established rule to abide by former precedents, when the same points come again in litigation ... to keep the scale of justice even and steady, and not liable to waiver with every new judge's opinion." However, to maintain consistency, judges must not rule by their feelings, but "according to the known laws and customs of the land; not delegated to pronounce a new law but to maintain and expound the old one." When a judge substitutes feelings for the law, his or her decision deserves no weight or authority and properly should be discarded. Precedents that are not based upon law are not precedents at all.

Judge James Kent, author of the "Commentaries on American Law" in 1826, noted that "hasty and crude decisions" of courts "ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired and the beauty and harmony of the system destroyed by the perpetuity of error." Following erroneous precedent is no excuse for perpetuating a bad decision.

And our highest court has made bad decisions. In 1857, in the case of Dred Scott v. Sanford, the U.S. Supreme Court concluded that slaves were the mere property of their owners and they were not entitled to bring an action in court. Justice Benjamin Curtis, who disagreed with his fellow justices, made the timeless observation in his written dissent that when "the theoretical opinions of individuals are allowed to control [the Constitution's] meaning, we have no longer a Constitution; we are under the government of individual men who for the time being have power to declare what the Constitution is, according to their own views of what they think it ought to mean."

In other words, the Constitution is our rule of law, not the feelings and theoretical opinions of fallible judges who wish to make law.

Liberal justices on the high court in 1973 in Roe v. Wade had no trouble rejecting sound doctrine and precedent when they created a constitutional right to abortion, and in 2003, Justices Ginsburg and Breyer did not find it difficult to invent a right to homosexual sodomy in Lawrence v. Texas only 17 years after the Court had ruled in Bowers v. Hardwick that there was no such right in the Constitution. Casually disregarding precedent four years ago and now hurling charges of disrespecting precedent today is utter hypocrisy, especially against fellow justices who want to correct errors of the past and return to constitutionally based decision-making.

I agree with Justice Ginsburg on one point: "Moral concerns" are at work in our courts today, but rightfully so! Long ago, Blackstone wrote that courts are not bound by former decisions that are "most evidently contrary to reason, much more if [they] be contrary to the divine law." Right and wrong are the basis for all law. Previous decisions that contradict reason, logic, the Constitution and the law of God should be discarded. Judges not only have the right but also the duty to disregard such decisions

. I congratulate the current justices on the high court who are willing to re-examine errors of the past. Only then can we begin to climb out of the proverbial ditch into which we have been led by bad precedent and wayward judges, and justices like Ginsburg and Breyer.

[an error occurred while processing this directive]