Legal Forms
Our Courts are dedicated to following “the law”; and the law takes several forms. The first is statutory law, laws written by the legislature. The easiest example of statutory law is statutory rape. Rape is to have sex with someone without their consent. Statutory rape is to have sex with someone who is legally unable to consent to sex, do to age or mental condition. That ability to consent is determined in law by the legislature. So this becomes rape because of the statute, not necessarily by force.
The second form of law is precedential law, better known as “common law”. It looks back at how past judges decided, and uses those precedents to determine the outcome of current cases. On my first day of law school, my Torts Professor described an old English case, where two boys were throwing stones over a hill. On the other side, a man’s eye was “put out” by one of the stones. Neither the man, nor the boys, knew whose stone did the damage. But the Court of Assizes found that both boys were equally liable for the damage, as they both were equally reckless. If I remember correctly, their fathers were required to pay a pig each to the injured man.
That became precedent in English Common Law, which still influences US law today. The concept of “Common Law Marriage” comes from this, and is still recognized in eight states. By simply living together as a “married couple” for a period of time an actual marriage is created with enforceable rights. Other states have made marriage solely a “statutory” function, requiring a state license.
Precedence
The ultimate form of statutory law is Constitutional law, law written into “stone” in the United States Constitution. But all laws require interpretation; a determination by the Court of what the written language actually means. It is in that determination that Courts create precedent, the decisions made by Courts in the past about that meaning.
Each state in the United States has a “highest Court” that determine the final interpretations of state statutes. The United States as a whole has the US Supreme Court establishing interpretations of national laws and the Constitution. Those final decisions are called “stare decisis”, the precedents used to determine how future decisions are made.
Courts in the United States and the separate states are bound by the decisions of similar cases at the highest courts. And only those highest Courts have the ability to overturn the precedent and establish new “case law”. Which brings us to the United States Supreme Court today.
Confirmation Pledges
When the last three Supreme Court Justices were being confirmed by the Senate, they all pledged to honor “stare decisis”. Gorsuch, Kavanaugh and Barrett pledged to Senators, including pivotal vote Susan Collins of Maine, that they would honor the decisions made by early Courts. This was particularly in relationship to the Roe v Wade abortion decision, but was also a general pledge to not “up-end” the law.
Supreme Court Justices received lifetime appointments, as long as they maintain “good behavior”. Unless a Justice commits an actual crime, they will remain on the Court. The process for removing them is the impeachment process we became so familiar with during the Trump Administration, and in our current political climate would end up with similar results. Only one Supreme Court Justice has been impeached, in 1805, and he was acquitted by the Senate of the charges.
So whatever they say in their confirmation hearings, once a Justice reaches the high Court, they are virtually immune from prior pledges. They are on their own.
Legal Domination
The Trump Administration bungled a lot of things, but in one area they were ruthlessly efficient: appointing federal judges. In four years 234 judges gained a Federal seat, 177 at the District level (26% of all District Judges), 54 at the Appellate level (30%), and 3 on the Supreme Court (33%). Ninety percent of Trump appointees, and all three Supreme Court nominees, have one thing in common – membership in the Federalist Society.
The Federalist Society has a common cause, a literal interpretation of the wording of laws, and adherence to the “original intent” of the writers. They do not believe that the law, particularly the Constitution, changes with time, other than through Amendment. This “originalist doctrine” is dramatically opposed to the “pragmatists” who see the Constitution as a document to be interpreted in light of current society and culture rather than a strict adherence to its original intent.
Loyalty
The Supreme Court has signaled its intent to change the national abortion precedents, Roe v Wade and Casey. The six conservative justices do not agree with those decisions, and they are going to change them – stare decisis be damned. And in the same way, the Court is changing the voter rights in America. In Shelby County v Holder in 2013, they undercut the enforcement provisions of the 1965 Voting Rights Act. This week, they signaled that they might not uphold the section that prevented legislative districts from racial gerrymandering.
Abortion regulation will soon become a state issue, no longer a national right. And voting rights and gerrymandering will also be a “state” problem. They will make their own determination, even if that puts racism into geographic law (see Alabama’s new maps). No matter what “promises” the Justices made to the US Senate before their confirmation, their loyalty is to the judicial philosophy of the Federalist Society – originalism. And that takes “precedence” over everything else.
