October 30, 2005

It's a Bird, It's a Plane... It's SuperPrecedent!
— Ace

New York Times article about "super precedents," a new legal concept of sorts. Super precedents are like normal precedents, except they are very important to the "fabric" of our law, and are thus not entitled to mere stare decisis, but super stare decisis.

Liberals used to call these sorts of precedents "liberal precedents." I don't remember them arguing that Bowers v. Hardwick, or the long list of precedents that one could execute a 17 year old cold-blooded killer, were "superprecedents," or really any sort of real precedent at all.

The New York Times, shockingly enough, tries to make trouble for potential Supreme Court nominee Michael Luttig:

An origin of the idea was a 2000 opinion written by J. Michael Luttig, a judge on the United States Court of Appeals for the Fourth Circuit, who regularly appears on short lists for the Supreme Court.

Striking down a Virginia ban on a procedure that opponents call partial-birth abortion, Judge Luttig wrote, "I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey," the case that reaffirmed Roe in 1992, "to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy."

Let's nip this one in the bud: He was saying it was his opinion that, as a judge inferior to the Supreme Court and charged to apply its precedents as they intended, he thought the Court intended itself to esptablish "super-stare-decisis." Not that he believes in such a thing, necessarily. Just that it was his job to do what the Supreme Court, and that the then-current O'Connor-led goofballs on the Court intended to create this new weapon, a +5 Holy Precedent, double-damage vs. rightwing troglodytes.

As a Supreme Court judge, he'll be deciding himself if he believes in "super-precedents."

Prof. Randy Barnett, a member of the Volokh Conspiracy, splashes cold water on this silly spark of imagination:

"The fact that something is a superprecedent doesn't give us a reason to stick to it if it's wrongly decided," said Randy Barnett of Boston University Law School...

Duh.

Seems to me Plessey v. Fergussen's separate-but-equal standard was a superprecedent with a long, multiply-reaffirmed history before, it you know, wasn't.

Posted by: Ace at 02:49 PM | Comments (25)
Post contains 388 words, total size 3 kb.

1 Yeah, big deal, superprecedent, yadda yadda yadda.

Who are the winners of the poetry contest?

Posted by: Michael at October 30, 2005 03:14 PM (pRtzm)

2 Althouse has a nice post on this. Sounds to me like Rosen is making up stuff judical conservatives (in this case Luttig) supposedly believe again, ala his "Constitution in Exile" creation.

Posted by: Reo Symes at October 30, 2005 03:27 PM (kUNrb)

3 Striking down a Virginia ban on a procedure that opponents call partial-birth abortion....

What do people in favor of this "procedure" call it? Enlighten me, oh wise bloggers and lurkers of the blogosphere for am I stupid and drunk a good majority of the time.

Posted by: Feisty at October 30, 2005 03:57 PM (bIGlT)

4 What do people in favor of this "procedure" call it?

"Choice."

Posted by: Sortelli at October 30, 2005 04:00 PM (tHvzT)

5 because "infantcide" just doesn't have the same ring.

Posted by: Rightwingsparkle at October 30, 2005 04:23 PM (CtDzx)

6 First I heard of this was Specter's mention of "super duper" precedents to John Roberts. Yes, a senior Senator actually said "super duper" to a SCOTUS nominee.

Posted by: The Unabrewer at October 30, 2005 05:19 PM (CDwI3)

7 A superprecedent... kinda reminds me of that line in A Few Good Men when Demi Moore STRENUOUSLY objected.

Were these people absent from law school on the day they taught law or something?

Posted by: Laura C at October 30, 2005 05:23 PM (CMj+O)

8 Feisty, the medical name for the procedure is "Dilation and extraction"( the cervix is what is dilated) or "D&X". It's sometimes confused with the most common procedure used in the early second trimester, the dilation and evacuation, or "D&E". Both procedures have lower morbidity and mortality for women than other procedures available to end pregnancy. Some "partial birth bans" are broad enough to prohibit both.

If abortion in the second trimester is to remain legal, you can see the obvious objections to making women resort to procedures that put them in greater danger than D&E or D&X.


It is undeniable that pregnancy has serious risks to a woman's health, and ending a pregnancy can mitigate those risks. Women who undergo induced abortions in the second trimester usually do so because they either face a more difficult course than average, are at greater risk than average, or some defect of abnormality did not become manifest until the second trimester...

A women who find out that she will not deliver a healthy child will have to weigh the risk of continuing a pregnancy to term, including all the bad things that can happen to her (ranging from temprorary disability from the pregnancy, loss of ability to work, to blood disorders, exacerbation of immune disorders or underlying illness, bleeding complications , loss of fertility from obstetric injury or treatment necessary as a result of a pregnancy complication, malfunction or damage of major organs, risk of mental disorders, and so on, and so on, that can result from any pregnancy and to which she may or may not be at greater risk, depending on the particular abnormality of the pregnancy) against the ultimate outcome.

There are many serious genetic and/or congenital abnormalities of a fetus that may not be discovered until the second trimester. Some are too horrible to describe, others you might be familiar with (trisomy 21, siamese twins, etc)I don't intend to argue that women "should" end a pregnancy because of this, but they should have a right to individually assess and mitigate the risks of pregnancy based on their own assessment of the benefit of continuing with a pregnancy and desire or ability to deal with a bad outcome, inconsultation with their physician.

It is sane and rational to oppose risk increasing- beaurocratic delatys delays or insistence that only more dangerous means to end a pregnancy in the second trimester can be used, while ending a pregnancy in the second trimester remains legal.

Posted by: Anonymous PB supporter at October 30, 2005 05:41 PM (jqVs9)

9 Yeah, guys, it's okay. Every child who gets aborted this way would have been some ugly mutant, or so poor and so black or something.

Posted by: Sortelli at October 30, 2005 05:56 PM (tHvzT)

10 Seriously, though, it is interesting that the anonymous shaky-fingered PB supporter based the entire argument over the mother's health "as long as abortion in the second trimester remains legal". That's an area I'm sure there could be compromise on, in the case of tragic and life-threatening complications.

But trying to come up with reasonable explanations for why it's okay, or at least the less tragic option in isolated cases, to kill a fetus isn't all that compelling as a broad defense of "what oponents call partial-birth abortion". Because right now it isn't always about the mother's health.

Sometimes it's about whether or not she wants to buy mayonaise at Price Club. HORRORS.

Posted by: Sortelli at October 30, 2005 06:12 PM (tHvzT)

11 I believe it was Costco, not Price Club.

Anyway, I question the timing.

Posted by: holdfast at October 30, 2005 07:05 PM (NTf9J)

12 Looks like we'll know tomorrow morning.

Will Santa bring a sweater (Alito, Luttig), a new bike (Jones, JRB), or a lump of coal (Mahoney, Owen)? Stay tuned.

Posted by: someone at October 30, 2005 07:07 PM (6Swlb)

13 Sorry about the crap spelling, folks. In my defense I haven't slept for about 24 hours, but it's embarrassing to undermine one's own remarks by typing like a monkey on meth.

If I recall that costco case, the fear of large containers of mayionaise was her best case scenario - the least of that woman was facing,whether she realized it or not. A triplet pregnancy is high risk and if she didn't consider the possible health consequences to herself, she should have.

However, in my view she waited too fucking long.
There is no excuse today for any woman failing to obtain an early abortion if "convenience" is her reason ( that's a pretty broad term encompassing a lot a situations, but I'll use it to describe any woman who is really wanting to avoid even an ordinary pregnancy and the best possible outcome of a healthy infant.)

I personally think no induced abortions for convenience should take place after eight weeks at the most. However, I am not certain what reasonable restrictions could be made that would not also be either so overbroad as to be meaningless in effect, or a burdensome intrusion by the government into private concerns .

Posted by: Shaky fingers at October 30, 2005 07:48 PM (jqVs9)

14 but it's embarrassing to undermine one's own remarks by typing like a monkey on meth.

I often find myself wailing away like a coked up chimpanze, myself. If not a hirsuite heroin hammered orangutang.

Posted by: Sortelli at October 30, 2005 08:42 PM (tHvzT)

15 Hmmm, well, actually, I rather think giving birth early might be safer for the mother than dismembering a fetus inside her uterus, but what do I know? I'd rather not have sharp instruments inside my uterus, that's for sure. I can't see that medical abortions really improve the health of the mother. The female body was made to handle pregnancy -- for the vast majority of women, it's safer to go through the whole schmeer than have your uterus and its "contents" pickled and scraped.

I'm willing to bet most late-term abortions aren't because the mother is going to die or be crippled by normal birth (in which case, they'd only need to induce labor early or do a C-section. I don't see why the baby has to =die=... if the baby is removed alive, I would think the outcome would be the same with regards to the health of the mother.) I would be willing to bet that a lot of these late-term abortions are because the baby is "defective". My grandma taught special education, so I've gotten to meet lots of people with Downs Syndrome. But now people can tell if the baby has genetic problems before it's born (and sometimes the tests come out wrong... oops, you aborted your healthy baby because you thought it was retarded? Well, no medical test is perfect.) -- I'm just hoping wrongful birth suits never win in this country, as they have in Europe.

If the baby is going to die soon after it's born, then why not just let it die a natural death, as opposed to sticking scissors into its skull? I don't see why everybody is in such a hurry for people to die. We're all going to die eventually. Just be patient.

Posted by: meep bobeep at October 31, 2005 12:20 AM (9Bj9e)

16 Hey Shaky...since when do they do abortions at 8 weeks? That would be, like, the day after you miss your first period, right?

I don't even think partial birth abortions are that common or that most physicians would perform one for the sake of mere convenience? I had a friend who was seeking a 5th (or 6th?)-month abortion out of desperation and fear, and she could not find a single person to perform it in the entrire states of MN, WI, or IA.

Posted by: Feisty at October 31, 2005 12:33 AM (6mQgo)

17 Feisty,

...since when do they do abortions at 8 weeks? That would be, like, the day after you miss your first period, right?

Uh, wrong. 8 weeks is two months, i.e. two menses, as in menstruate. Two periods, not one.

I don't even think partial birth abortions are that common....

There are about 7000 performed each year, so they are a small percentage of abortions, but it is say 9 times the rate of soldiers dying in Iraq. You personally know someone who wanted it done, which means it can't be that uncommon.

Posted by: caspera at October 31, 2005 02:33 AM (jylGY)

18 How about this? why don't we work on some common sense measures.

Like a parent being informed before a MINOR (like a 13 or 16 yr old) has A SURGICAL PROCEDURE!!!

How about a requirement that the girl or woman be given ALL available options and NOT JUST FROM THE CLINIC THAT IS ABOUT TO PROFIT OFF HER AGONY.

How about "informed consent?" Abortion is the only surgical procedure in the country where a doctor is not required to discuss EXACTLY what the procedure is.

And how about a 24 hr waiting period? I mean do you have any other surgery without thinking about it?

What? You thought these things were in place? You would be wrong. Legislative bodies keep passing these laws and courts keep striking them down. Welcome to the insane world of liberalism.

And is is so unreasonable for the father to at least be informed??? I mean it IS his child too. And by the time anu abortion is performed (after 6 weeks) the heart is beating and brain waves are detected. So MAYBE the father has a right? And maybe, just maybe, the baby has some rights too?

Posted by: Rightwingsparkle at October 31, 2005 03:53 AM (CtDzx)

19 alito is the nominee

Posted by: Veritas at October 31, 2005 05:43 AM (Tr2b6)

Posted by: veritas at October 31, 2005 05:45 AM (Tr2b6)

21 Ohhh, the pain. I was just over at DU reading the comments on Alito, and my sides are sore from laughing.
The sudden Dem fondness for Miers is downright heartwarming.

Posted by: lauraw at October 31, 2005 06:41 AM (jKLID)

22 I'd like to know more about this magical sword of which you speak.

Posted by: Lord Grimshackle 15th level Fighter/Magic User/Thief at October 31, 2005 07:10 AM (vLNLO)

23 Yeah, but what about the double-secret precedents?

Posted by: OregonMuse at October 31, 2005 07:33 AM (KQHZF)

24 I have the Hand and Eye of Vecna. They are worthless to me.

Posted by: Lord Grimshackle 15th level Fighter/Magic User/Thief at October 31, 2005 07:43 AM (vLNLO)

25 wow! glad to see we haven't dumbed down the Constitution or anything

is it time, Ace, to re-run those super-duper-sized Halloween super hero costumes? just for old time's sake.
show the people how spiderman's privates and wonder woman's bouffant fight for super dupe dupe duper truth justice and the american way?

Posted by: at October 31, 2005 09:47 PM (++PlU)

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