America is reaping what it has sowed. People are up in arms about the current Supreme Court overruling the landmark precedent case of Roe V. Wade. So am I. But, the Supreme Court can do that. Since the previous decision was a Supreme Court decision only the Supreme Court can overrule it. But it can do that and has often overruled previous cases in the past. This is what the legal doctrine of Stare decisis is all about. That doctrine obligates lower courts to follow historical cases when making a ruling on a similar case. Stare decisis ensures that cases with similar scenarios and facts are approached in the same way. Simply put, it binds courts to follow legal precedents set by previous decisions. The prior decision which is called a precedent is binding on lower courts only. However, it does not bind the Supreme Court.
The Supreme Court in Canada and the United States can always overturn a previous decision and when you think about it that is absolutely necessary. Otherwise the court would be locked forever when it made a decision. For example, those who now disagree with the decision the court made in the recent Dobbs case where Roe v. Wade was overturned would have to accept the result forever. That would be highly unacceptable. The fact is sometimes courts make bad decisions that should be reversed.
That does not mean I agree with the recent decision of the US court. In fact, I think it shows what happens when for decades Supreme Court decisions and appointments to the court are determined by politics and ideology and not good reasoning. That has happened to an alarming extent in the US for decades. I hope Canada does not follow suit. And let me be clear, both parties have been guilty of this egregious offence. The parties have been trying to turn the court into what John Hanna of the Associated Press called “culture warriors.” That is exactly what these people have been doing.
The most recent example was the farcical confirmation hearings for Joe Biden’s nominee Ketanji Brown Jackson. Ms. Jackson had 3 important characteristics that drove the Republicans crazy: She was black, a woman, and smart. As a result the conservative Senators dipped into their arsenal of stupid. Senator Cruz and other Republicans came out and insinuated that she was soft on crime and suborning pedophilia. The insinuations were nasty, brutish, and stupid but that did not build caution in her attackers. It was obvious that her Senate foes cared nothing about the truth or her obvious qualifications but cared only about showing off to the Republican base how they would defend “traditional values” like attack dogs. As Amy Davidson Sorkin said in The New Yorker, “At one point, Republican Senator Ted Cruz suggested that supporting Jackson was comparable to calling for the police to be abolished.” Republican Senator Tom Cotton said “Judge Jackson has also shown a real interest in helping terrorists.” Cruz was joined by Josh Hawley in suggesting that she was part of a liberal conspiracy ring supporting a child-trafficking ring. Representative Marjorie Taylor Greene said the 3 G.O.P. Senators who vote for her were “pro-pedophile.” Senator Marsha asked Jackson to define “woman.” When she did not provide a definition, Cruz asked her how she could expect to rule on cases involving gender if she did not know what a woman was. Jackson instead said that the woman she admired most in the world, her mother, who was at the hearing, is a woman. Clearly, she did not need Cruz to help her understand what a woman was.
When criticisms become so untethered from reality, it is obvious that the purpose of the charges has nothing to do with an assessment of the candidates and everything to do with scoring points in the Kulture Wars.
This has been going on in the US for decades. As a result, America has the Supreme Court it deserves deserves. Our Canadian system is far from perfect, but at least we haven’t gone there.