, 06.29.2022 09:32 AM

My law: the end of law

What if there are no more rules?

What if there are no more laws? No more precedents, no more constitutions, no more charters?

What if the law just becomes what people in power say it is?

That – along with the obvious implications for American women – is one of the most dangerous consequences of the US Supreme Court’s decision to toss out Roe v. Wade last week. For half a century, Roe v. Wade has permitted American women to legally obtain safe abortions.

And now that’s gone. A decision that had had the effect of a constitutional proclamation – that is, untouchable in law – was tossed out. Tossed out by three unelected, unaccountable partisan judges who had lied about “stare decisis.”

“Stare decisis” is a legal doctrine. It’s Latin, and it basically means “to stand by things decided.“ Stare decisis is the immutable legal rule that courts will stick to established precedent when making decisions.

Last week, the Supreme Court of the United States of America tossed stare decesis in a dumpster. They threw out the principle that holds together the law, and democracy, too. And that is very, very ominous.

The law comes from statute, passed by legislatures. But the law also comes from wise decisions made by judges in court rooms. Some of those decisions can be centuries-old, but still stand today.

In the United Kingdom, for example, there is Bushel’s Case, from 1670, which prohibits a judge from trying to coerce a jury plot convict.

There’s Entick v. Carrington, in 1765, which imposed limits on the power of Kings and Queens.

There’s the Carlill case, in 1893, that established the rules for creating contracts.

In the US, there’s been cases like that, too. The 1914 Weeks case, which said a person can’t be prosecuted with evidence obtained illegally. Or Brown v. Mississippi, in 1936, which said that confessions cannot be obtained through police violence.

In Canada, we’ve had no shortage of landmark legal decisions as well. Hunter v. Southam, in 1984, which threw out evidence when the authorities rampages through media newsrooms to find evidence.

Or R. v. Sparrow, in 1990, which held that Indigenous people had rights. Or the Feeney case, in 1997, which determined that the police can’t enter your house without a warrant.

It’s hard to imagine all of those rules being tossed out on the whim of some partisan hack. But that is what happens when unelected, unaccountable judges are given unlimited power, and an unhinged view of the law: they can change society with the stroke of a pen. And there’s not a damn thing you can do about it.

There are many, of course, who are happy that the US Supreme Court ended abortion rights for American women last week. They feel that they won, and they arguably did.

But if “stare decisis” no longer exist, how will conservatives feel if this or a future Democratic president decides to stack the high court with his or her own partisans? What if that future court allows the authorities to seize private property without compensation, or take away gun rights, or declares pedophilia a legitimate form of sexual expression?

The loss of stare decisis cuts both ways, you see. If courts no longer feel bound by well-reasoned, long-accepted legal precedents, the law will become a joke. It will become only what those with power says it is. It will become an abomination.

And make no mistake: the US high court, no longer bound by precedent, has signaled it is going after gay marriage and equality rights next. When there are no more rules, the rules only become what the powerful say they should be.

The Americans are adrift in dark, dark waters, and God knows where they will end up.

We should not follow their lead.

[Kinsella has been an adjunct professor at the University of Calgary’s Faculty of Law.]

10 Comments


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    Peter says:

    Strictly speaking, stare decisis binds lower courts to follow the rulings of higher courts above them. It does not prohibit a court from reconsidering and reversing its own rulings, which happens fairly regularly. Good thing too, otherwise the U.S. would be stuck with Dred Scott, Plessy v. Ferguson and Bell v. Buck (which upheld the compulsory sterilization of mental defectives).

    Would you argue that the U.S. Supremes should be bound by precedent on gun control? I suspect that, on that issue, many progressives who like your article would suddenly rediscover the beauty of the “living, breathing” constitution.


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      Sean says:

      BINGO… Another way to put it might be to say that “living breathing” implies “inhaling and exhaling”. I think there is a fair bit of sucking and blowing on the part of Lib/Dems.

      I am totally against the decision…. But I think if Liberal legal philosophers were being intellectually straightforward… such decisions have equal validity to those made in the 1970s…. Who is to say that they don’t?! If you want your rights tied ONLY to unelected judges, well fuck, this is what can happen.

      I honestly don’t think its so much about the Supremes being against abortion. It’s more about absolving their branch of government deciding on such matters.

      If Lib / Dems want to be taken seriously, they should legislate it at the Federal level… Run the mid term campaign on that issue and let the people decide.


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        Peter says:

        I agree, and I think you are completely right about the significance of the decision. The romantic adoration many Americans evince for their Bill of Rights leaves most of them oblivious to the fact that being in favour of aggressive judicial activism means supporting government by fiat of unelected, unaccountable sages from one profession as opposed to by elected representatives. The recent public speeches by U.S. Supreme Court Justices on both sides to the effect that the court is driven by law, not politics, are laughable. That horse left the barn a long time ago. Like, maybe in 1776.

        For this reason, I’ve never been a great fan of the Charter, and have often championed parliamentary supremacy, although I have to acknowledge that our Supremes have generally been more restrained and disciplined about jumping into American-style excess. But, I’ve come to be a little less confident about my argument because of the total domination our PM and his flak catchers have over Parliament. British MPs are much more independent than our lapdogs. So, when I pen odes to the glories of rule by our elected parliamentary representatives over unelected judges, am I really just backing rule by Gerald Butts and Katie Telford?


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    Ronald O'Dowd says:

    Warren,

    Perhaps Dred Scott v. Sandford offers an eventual way out where the legislative branch reversed this infamous example of “Stare decisis” by virtue of adoption of the Thirteenth and Fourteenth Amendments to the American Constitution. However, state ratification would be another kettle of fish.


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    Don Ireland says:

    I read your opinions regularly in the Toronto Sun with interest. However, I was surprised in the article noted above with your assertion that the judges of SCOTUS did not consider “stare decisis” and refer to precedents in previous legal cases. You basically called into question the integrity and competency of these judges and threw them under the bus. I am wondering if you read the 213 page decision before you made your comments. If not , I would direct you to
    https://www.documentcloud.org/documents/22067246-dobbs-decision to read the decision.
    As to your assertions, I think you will find that many of them are not true. I would point out the following.

    1. Starting on page 2 of the document, the Syllabus summarizes the issues they considered and the second issue is that the Court examined whether the right to obtain an abortion is rooted in the Nation’s history and tradition. Their research showed that abortion had been a crime of homicide in common law, written law and precedent back to the 13th century in Britain and continued in American common law and precedent until 50 years ago when Roe created new law. Therefore, it seems to me that your statement is actually backward and Roe and Casey broke with precedents.
    2. On page 4, it outline the third issue they considered and it is specifically about abortion rights is part of broader entrenched rights supported by other precedents and specifically discuss the doctrine of “stare decisis” as it applies to the issue. They point out that other cases have shown that this doctrine “is at its weakest when the Court interprets the Constitution,” and researched other cases when precedents were overruled. They also pointed out the errors in reasoning and actual statements of error and the distortions in other legal doctrines in the Roe and Casey decisions leading to the conclusion that those decisions should be overruled.

    Both of these issues are discussed in detail later in the decision document prepared by Justice Alito starting on page 9. I think your opinion is somewhat biased and I encourage you to read the full document prepared by SCOTUS to address your issue of concern and the comprehensive legal analysis by the learned judges.


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      Ronald O'Dowd says:

      Don,

      I get your comment but the real point is that at least two judges subject to Senate confirmation made no bones about how Roe was an important precedent of the Court, leaving gullible Senators with the mistaken impression that they would at least respect it, which when translated into judicial-speak suggested that they would not likely agree with a court opinion that would explicitly overturn Roe and send this issue back to the States. Disingenuous at best and outright lies at worst made in an attempt to shore up their individual attempts at Senate confirmation. Personally, I would have voted all three Trump nominees down but that’s just me.


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        Eddie says:

        “Gullible Senators…” hahahahaha

        One doesn’t become a US Senator by being gullible. I think the better description is “cowardly or cynical Senators”

        No one is gullible in DC


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    WestGuy says:

    The only question I would have relating to this is has the SCOTUS ever overturned other previous rulings or rejected the “stare decisis” doctrine? I would have trouble believing that the courts have never opted to overturn or rule against something that had already been decided.


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    Bill Malcolm says:

    I’m no law professor, but I easily grasp Mr Kinsella’s arguments. I’d be interested in his opinion on the US-decided “international rules-based order”, which flouts established international law. In other words, law is subverted to whatever the US decides, goes, starting with the Monroe Doctrine of 1823.

    This aspect of American “intellectual” judicial thought that led to the overturn of Roe v Wade seems to have been festering in our southern neighbour for centuries. It amounts to do what we say or we’ll beat you up. Oh well, we wouldn’t have had cheap bananas without that attitude.


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    william shakesfeare says:

    Pogo was right. The enemy is us.

    We stand by while
    abusers abuse us
    traitors betray us
    and the rich rob us blind
    and all because we are forced to pay taxes with no representation and give control of the public purse to political parties.
    Until and when we take back control of our own money with a different system and better control nothing will change.

    It’s crime time in America and it’s already too late to go back to “normal” when one party sort of tries to govern by the book while the right tears out the pages.

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