The Supreme Court is courting disaster

The Supreme Court is courting disaster

Gun Rights

Justice Stephen Breyer’s dissent in the recent case, Franchise Tax Board of California v. Hyatt , is being widely interpreted as a warning that Roe v. Wade is likely to be overturned. "The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it," Breyer said. "Today’s decision can only cause one to wonder which cases the Court will overrule next." Breyer pointed to the implications for Roe by citing specifically the language from Planned Parenthood v. Casey , the decision that upheld Roe on the basis that it was settled law, in the closing peroration of his dissent. But the purpose of Breyer’s allusion is not merely to predict the Court’s likely actions, but to warn of the damage they will do to the Court’s own standing. If the Court proceeds to wantonly overturn settled precedent, it will encourage continuous re-litigation of apparently settled questions, and ultimately lead the people to conclude that Justice John Marshall was wrong when he famously proclaimed in 1803 that "It is emphatically the province and duty of the Judicial Department to say what the law is." Is that a problem? Actually, it is — but fear of the prospect of overturning Roe is precisely the wrong vantage point from which to understand why. The popular story of the Court’s primary function, as a guarantor of fundamental rights, is incorrect. What guarantees fundamental […]

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