Our Courts are dedicated to following \u201cthe law\u201d;\u00a0\u00a0and the law takes several forms.\u00a0\u00a0The first is statutory law, laws written by the legislature.\u00a0\u00a0The easiest example of statutory law is statutory rape.\u00a0\u00a0Rape is to have sex with someone without their consent.\u00a0\u00a0Statutory 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.\u00a0\u00a0So this becomes rape because of the statute, not necessarily by force.<\/p>\n\n\n\n
The second form of law is precedential law, better known as \u201ccommon law\u201d. 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\u2019s eye was \u201cput out\u201d 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.<\/p>\n\n\n\n
That became precedent in English Common Law, which still influences US law today. The concept of \u201cCommon Law Marriage\u201d comes from this, and is still recognized in eight states. By simply living together as a \u201cmarried couple\u201d for a period of time an actual marriage is created with enforceable rights. Other states have made marriage solely a \u201cstatutory\u201d function, requiring a state license.<\/p>\n\n\n\n
The ultimate form of statutory law is Constitutional law, law written into “stone” in the United States Constitution.\u00a0\u00a0\u00a0But all laws require interpretation; a determination by the Court of what the written language actually means.\u00a0 It is in that determination that Courts create precedent, the decisions made by Courts in the past about that meaning.\u00a0\u00a0<\/p>\n\n\n\n
Each state in the United States has a \u201chighest Court\u201d that determine the final interpretations of state statutes.\u00a0\u00a0The United States as a whole has the US Supreme Court establishing interpretations of national laws and the Constitution.\u00a0\u00a0Those final decisions are called \u201cstare decisis\u201d, the precedents used to determine how future decisions are made.<\/p>\n\n\n\n
Courts in the United States and the separate states are bound by the decisions of similar cases at the highest courts.\u00a0\u00a0And only those highest Courts have the ability to overturn the precedent and establish new \u201ccase law\u201d.\u00a0\u00a0Which brings us to the United States Supreme Court today.<\/p>\n\n\n\n
When the last three Supreme Court Justices were being confirmed by the Senate, they all pledged to honor \u201cstare decisis\u201d.\u00a0\u00a0Gorsuch, Kavanaugh and Barrett pledged to Senators, including pivotal vote Susan Collins of Maine, that they would honor the decisions made by early Courts.\u00a0\u00a0\u00a0This was particularly in relationship to the Roe v Wade<\/em> abortion decision, but was also a general pledge to not \u201cup-end\u201d the law.<\/p>\n\n\n\n Supreme Court Justices received lifetime appointments, as long as they maintain \u201cgood behavior\u201d.\u00a0\u00a0 Unless a Justice commits an actual crime, they will remain on the Court.\u00a0\u00a0The 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.\u00a0\u00a0Only one Supreme Court Justice has been impeached, in 1805, and he was acquitted by the Senate of the charges.<\/p>\n\n\n\n So whatever they say in their confirmation hearings, once a Justice reaches the high Court, they are virtually immune from prior pledges.\u00a0\u00a0They are on their own.<\/p>\n\n\n\n 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 \u2013 membership in the Federalist Society.<\/p>\n\n\n\n The Federalist Society has a common cause, a literal interpretation of the wording of laws, and adherence to the \u201coriginal intent\u201d of the writers.\u00a0\u00a0They do not believe that the law, particularly the Constitution, changes with time, other than through Amendment.\u00a0\u00a0This \u201coriginalist doctrine\u201d is dramatically opposed to the \u201cpragmatists\u201d 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.<\/p>\n\n\n\n The Supreme Court has signaled its intent to change the national abortion precedents, Roe v Wade<\/em> and Casey<\/em>.\u00a0\u00a0The six conservative justices do not agree with those decisions, and they are going to change them \u2013 stare decisis be damned.\u00a0\u00a0And in the same way, the Court is changing the voter rights in America.\u00a0\u00a0In Shelby County v Holder<\/em> 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.\u00a0\u00a0<\/p>\n\n\n\n Abortion regulation will soon become a state issue, no longer a national right.\u00a0\u00a0And voting rights and gerrymandering will also be a “state” problem.\u00a0\u00a0They will make their own determination, even if that puts racism into geographic law (see Alabama’s new maps).\u00a0\u00a0No matter what \u201cpromises\u201d the Justices made to the US Senate before their confirmation, their loyalty is to the judicial philosophy of the Federalist Society \u2013 originalism.\u00a0\u00a0And that takes \u201cprecedence\u201d over everything else.<\/p>\n","protected":false},"excerpt":{"rendered":"Legal Domination<\/h3>\n\n\n\n
Loyalty<\/h3>\n\n\n\n