There are those in this country who truly believe that the Supreme Court is the repository of all that is good and just. There are those who believe that the Supreme Court should be the ultimate and exclusive interpreter of the Constitution because members of the Court are wiser, fairer, more consistent and more far-seeing than members of the general public.
And then there are those who actually look at the jurisprudence of the Court. The Court has made an incoherent mess of the Constitution. According to the Court, states may restrict cross burning (Virginia vs. Black, 2003) but not flag burning (Texas vs. Johnson, 1989). According to the Court, the federal government may restrict campaign contributions and pre-election political ads (McConnell vs. FEC, 2003) but not "virtual" child pornography (Ashcroft vs. The Free Speech Coalition, 2002). According to the Court, states may not discriminate on the basis of race (Brown vs. Board of Education I, 1954) but may discriminate on the basis of race (Grutter vs. Bollinger, 2003), but may not discriminate on the basis of race (Gratz vs. Bollinger, 2003). According to the Court, Texas may display the Ten Commandments on the grounds of the state capitol (Van Orden vs. Perry, 2005) but Kentucky may not display the Commandments in state courthouses (McCreary County, Kentucky vs. ACLU of Kentucky, 2005).
Then there is the value of "stare decisis" (precedent) that our senators have prattled endlessly about during Judge Samuel Alito's confirmation hearings. It seems that the value of precedent rises above all else for the senators. Sen. Arlen Specter (R-Penn.), for example, informed Judge Alito in a Dec. 13, 2005, letter that "the concept of stare decisis is crucial to our legal system." According to justices Kennedy, O'Connor and Stevens, the Court's legitimacy rests on its adherence to past principle: "To overrule under fire in the absence of the most compelling reason to re-examine a watershed decision would subvert the Court's legitimacy beyond any serious question."
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