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Roberts and Thomas Battle Over Burke

The most important question for the Supreme Court today is the relation of stare decisis to original meaning. Five justices on the Court today adhere, at least most of the time, to some form of originalism when there is no precedent that gets in the way of vindicating the actual Constitution. But, unfortunately, nonoriginalist precedents abound, because both the New Deal Court and the Warren Court had a majority of justices who believed in updating the Constitution to capture progressive principles. In two important cases decided this past Monday, June Medical Services v. Russo and Seila Law v. Consumer Financial Protection Bureau, stare decisis was front and center, as was the great conservative champion of adherence to the examples of the past, Edmund Burke.

In Seila, Chief Justice John Roberts, as I had predicted at this site, held that insulating the Director of the CFPB from presidential removal was unconstitutional because it violated the separation of powers. The reason is that “The President’s executive power generally includes the power to supervise—and, if necessary, remove—those who exercise the President’s authority on his behalf.”

The problem of stare decisis in this case is that the Court has upheld restraints on the president’s removal authority, most notably in Humphrey’s Executor v. United States, in which the Court held that independent multimember commissions whose members are appointed from both parties cannot be dismissed at will by the President. Roberts simply limits such cases to their results, not their reasoning. And the CFPB is factually different from most independent agencies in two ways: It has a single director rather than a board of politically balanced commissioners, and it has an independent funding source, enjoying access to a percentage of the revenues of the Federal Reserve, another independent agency.

Thus, Roberts is free under his view of stare decisis to strike down the CFPB’s removal provision because it conflicts with the Constitution’s requirement of a unitary executive in which the president has complete supervisory power. The factual situations of previous cases are protected by stare decisis, but their rationales fall if they conflict with original meaning. One way of encapsulating Roberts’ view is that stare decisis only incorporates results, not the reasoning necessary to arrive at those results.

Justice Clarence Thomas, in concurrence, would clearly have gone further. He would have made clear that Humphrey’s Executor was no longer good law even for independent commissions. That stance is consistent with his view that precedents should be overruled if they are demonstrably erroneous.

In June Medical v. Russo, stare decisis was also at issue and the Chief Justice’s vote was also controlling in a 5-4 decision, although in this case, he wrote not for a majority but only for himself. June Medical concerned the constitutionality of a Louisiana requirement that abortion providers also have admitting privileges at hospitals not less than 30 miles away from the abortion providers’ facility. In Whole Woman’s Health v. Hellerstedt (2016), the Court, also in a 5-4 decision, had invalidated a similar provision in Texas. Both cases turn on Planned Parenthood v. Casey’s framework for deciding abortions cases. Casey‘s doctrine precludes laws that “have the effect of presenting a substantial obstacle to women seeking an abortion.”

The salient difference between the unwritten traditions Burke extolled and constitutional law is that the Constitution is a written document against which subsequent interpretations must be measured.

Roberts had dissented in Whole Woman’s Health and would have upheld the admitting privileges requirement there, but here he struck the requirement down on stare decisis grounds. And he did so because he believed that the cases presented the same factual circumstances, although he disagreed with the rationale of Whole Woman’s Health. In that case, Roberts argued, the majority had wrongly balanced the benefits of the regulation against the burden on the abortion right. Roberts stated that this was the wrong test, because Casey did not require such balancing. Only a substantial burden on the woman’s right to abortion would serve to invalidate the law without regard to the strength of the state’s rationale for its restriction.

Thus, in June Medical, Roberts voted to invalidate an abortion restriction on the basis of a decision from which he himself dissented and which he recognizes was based on erroneous reasoning. His vote wholly depends on a claim of stare decisis dictated by the factual similarity of the two cases. This reasoning parallels his refusal to cast doubt on the constitutionality of the many multimember commissions, like the Securities and Exchange Commission, that dot our nation’s capital, because they are more similar factually to the commission at issue in Humphrey’s Executor.

This position again contrasts with Justice Thomas’ position, which would overrule a decision if it were demonstrably erroneous, as Roberts believes Whole Woman’s Health was. (In June Medical, Thomas would have overruled Roe itself, but Roberts and other conservative justices did not consider that question, because Louisiana did not ask for Roe to be reconsidered.)

While I do not fully agree with Justice Thomas that any demonstrably erroneous precedent should be overturned, I find Roberts’ greater reluctance to overturn precedents on the basis of their factual similarity untenable. The judiciary is an institution that makes decisions based on reasons. Why should it continue to follow those decisions simply because the facts are similar if its reasons for a previous decision are shown to be wrong?

Roberts relied on the sonorous prose of conservatism’s greatest philosopher—Edmund Burke—to justify his position in June Medical: “This principle [of stare decisis] is grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them. Because the ‘private stock of reason . . . in each man is small . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.'”

It is far from clear, however, that Burke would tell us to stick with the facts but discard the rationales of prior legal decisions. Indeed, the quote from Burke here notably focused on reason. Humility would suggest not discarding considered reasons as well as facts. But the salient difference between the unwritten traditions Burke extolled and constitutional law is that the Constitution is a written, carefully deliberated document against which all subsequent interpretations must be continually measured.

Moreover, Burke elsewhere uses age as an indication of truth. And the rationale of Humphrey’s Executor, a case decided eighty-five years ago and cited favorably by the Court many times, has been part of the law much longer than the facts of Whole Woman’s Health, a case decided four years ago. As Thomas noted in his dissent, “no one can seriously claim” that Whole Woman’s Health is “part of the ‘inheritance from our forefathers’” that Burke so valued.

To be sure, there may be other reasons not to discard precedents, like reliance that individuals may have placed in them and the chaos that overruling may cause. I do not believe either rationales are strong arguments for following the precedent in either case here. No one argues, for instance, that a Louisiana abortion provider built a practice in reliance on Whole Woman’s Health.

It is true that the media would have highlighted and criticized the reversal in June Medical because the question of abortion so divides our nation. In contrast, no one outside the beltway and the legal academy cares much about the removal process for executive agency heads. But stare decisis must above all reflect the rule of law, not considerations of how the decision will play on the nightly news. 

Reader Discussion

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on July 02, 2020 at 07:51:06 am

There is a distinction with a difference between a holding and ratio decidendi. The modern penchant for the latter amongst New Dealers/Great Societers has been a source of judicial mischief in failing to address structural restraints that, properly interpreted, preclude the difficulty of balancing competing power. CFPB was and is an unConstitutional usurpation of State police power. Likewise, the issue of precedent in June Medical would have been obviated by simply recognizing the Constitution of Louisiana and its controlling interest in policing the rights it declares, in its civil vis a vis common law dimension, including the power of its legislature to determine right from wrong, providing a Constitutional deference in construing the 14th Amendment, and there to protecting the freedom of its citizens to decide through their elected representatives their governance for themselves. Bare citations to precedent without considering the weight of precedent in the duration destroys the doctrine of precedent. The New Deal and Great Society deviated grossly from precedent in pursuit of ideology and the administrative state, shifting authority from the Constitution to the state under the pretext of protection, the letter as opposed to the spirit. To rely on that 'revolution' as precedent is to make revolution precedent! Back to the old path. At least, pursuant to that, we would not be facing the scourge of identity politics suborned from the Bench under the guise of 'right', and equal protection would not be emasculated in the surge of privilege.

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gdp
on July 03, 2020 at 06:24:53 am

Your brilliant rebuttal renders the 'Professors' contorted antics moot. As Power corrupts absolutely it seems Academia pollutes quite completely.

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FreemenRtrue
on July 04, 2020 at 10:11:49 am

YOU, Sir, are ABSOTIVELY spot-on!
Indeed, one wonders why the EPA has not been deployed to eliminate this pollution.

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gabe
on July 02, 2020 at 07:54:48 am

Senator Collins said her only concern in deciding how to vote on Kavanaugh confirmation....”where does he stand on stare decisis? We know that stare decisis is Latin for, “I see no need to bother with the Constitution “. Or as Roberts said in June Medical, “ individuals would do better to avail themselves of the general bank and capital of NATIONS”.....there are so many other sources to follow on our way down.

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Bob McEwen
on July 02, 2020 at 08:23:54 am
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TLC
on July 02, 2020 at 08:38:15 am

There is so much more to both cases than presented here. Read the SCOTUS Blog or elsewhere for the rest and best of both cases.

But, in a nutshell, both cases show once again that Roberts is a small man in a big job. Chief Justice Rehnquist, who cared deeply about actually doing the job which his role called for, not just posing for photo-ops as the presiding Justice, would very likely have cleaned up the Supreme Court's messes in both cases. He would not have resorted to the constitutionally-dubious trick of severability to save the heart of the unconstitutional CFPB while merely overturning its removal restraint on the president. Rehnquist would have tossed out the CPFP in its entirety and overturned the ridiculous precedent Humphrey's Executor while he was at it. (See Kagan's dissent where she calls out Roberts on his false distinction between single-head and multi-membered agencies.) If one is going to sweep the mouse droppings out of the basement one had best also remove the mice and their nest.

Nor is it likely that Chief Justice Rehnquist would have employed a contextualized principle of stare decisis to overturn Louisiana's medical privileges abortion restraint, almost certainly not on a matter of constitutional interpretation. And, as Professor McGinnis notes, in June Medical, Roberts deployed the weapon of stare decisis to strike down Louisiana's hospital medical privileges law while, Shazzam!, overturning the reasoning of the Texas case which he said stare decisis required that he reveres his earlier position supporting Texas' identical law imposing hospital medical privileges for abortionists. AndRoberts did his Romneyesque flip flop solely in reliance on the district court's findings of fact (which on undue burden were at best murky,) while showing no deference to the findings of fact of Louisiana's legislature.

Robert's switch in June Medical is simply an amazing abuse of logic; his majority opinion in CPFB an amazing shirking of duty.

And Roberts did his half-ass work again yesterday in Espinoza vs. Montana Department of Revenue, laudably overturning, as an unconstitutional restraint on the free exercise of religion, the Montana Supreme Court's interpretation of that state's Blaine Amendment as barring tax credits for tuition at religious schools. Yet, while he had the votes to clean up at least one of the Court's myriad messes of First Amendment religious jurisprudence, Roberts failed to do so. Rather, he adhered to the arbitrary distinction between religious status (not a violation of the Establishment Clause) and religious use (a violation of Jefferson's and Justice Black's fake "wall of separation.") It is clear that where there is no religious practice there can be no religious status. Yet Roberts retained the Court's false dichotomy between orthodoxy and orthopraxy; it lives on to cause more confusion and yet more obstruction of religious liberty.

BTW: Read Alito's concurrence in the CPFB case for a word- picture of the Chief Justice bending himself like a pretzel and read Alito's concurrence in the Montana case for an extended historical summary of the 19th century's infamous "Blaine Amendment" which became law in several dozen states. In today's political climate the Democrat Party routinely hurls the word "racist" against anyone who opposes it. Thus, it is noteworthy today that in the late 19th century the Blaine Amendments were lobbied and adopted as part of a nationwide, Democrat Party campaign of ant-Catholic religious bigotry.

Thus, it is not just in the racist matters of expanding ante-bellum slavery, fighting a Civil War to sustain slavery, defeating Reconstruction and extending Jim Crowe for 100 years that the Democrat Party has a long history of bigotry and of deploying the law to deny constitutional rights. And of course, we must not forget FDR's forced relocation and detention of Japanese-Americans, sustained in Korematsu (still standing and a case, per Roberts logic, to the respect of stare decisis) by FDR's "Supreme Court in Time that Saved Nine."

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paladin
on July 02, 2020 at 10:37:34 am

Paladin:

BTW: You were right re: Roberts and Seila v CFPB. I did not at first catch roberts "minimalization" tactic in salvaging the CFPB by relying upon severability, a doctrine which to my recollection has never been employed to salvage any abortion restrictions.
Clever *little* bugger is the Chief.

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gabe
on July 02, 2020 at 08:55:09 am

I'm no lawyer, but I see Roberts' whole approach as a triumph of our power of rationalization:
1. How do I want to decide?
2. What old or new theory will get me there?

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RAM
on July 02, 2020 at 09:18:58 am

One wonders where CJ Roberts would have come down on a review of Dred Scott. Stare decisis?

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David Jay
on July 04, 2020 at 08:43:44 am

Every denial of the fact that every beloved son or daughter of a human person can only be, in essence, a human person would result in an error of Substantive and thus Procedural Due Process Law.

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Nancy
on July 07, 2020 at 14:36:49 pm

“That stance is consistent with his view that precedents should be overruled if they are demonstrably erroneous.”

“One wonders where CJ Roberts would have come down on a review of Dred Scott. Stare decisis?”

Yes, because Justice Roberts, like the majority, does not believe that the precedent set in Genesis, when God Created every human person, equal in Dignity, while being complementary as a beloved son or daughter, is true, and thus believes personhood is a human construct, the definition of which depends on the Mystery Passage, which in claiming every man to be a king, denies The King Of kings, and thus denies Divine Providence.

http://libertymagazine.org/article/justice-kennedys-notorious-mystery-passage

https://poseidon01.ssrn.com/delivery.php?ID=209124067117017113028066016080091006024032057016025011126065097100124019105095086102119124037063000027124029015124083126073050059095080020122091089012115030006031008066013085002072116097098120064122084000067106124095111103031028082097064096084099&EXT=pdf

“Whoever does not appreciate the significance of signs and symbols will never understand the essence of a sacrament, and only those who realize what constitutes a sacred action will find the way open to a deeper understanding of the Christian cultus and mystery [as in the Actio Sacra of the Mass].” (Josef Pieper, Josef Pieper: An Anthology (San Francisco: Ignatius Press, 1989), page 164—this is a cited portion of his own “Foreword” to his earlier 1974 book, Über die Schwierigkeit Heute zu Glauben (About the Difficulty of Having Faith Today). - H/T Ordo Dei Hickson Family

And whoever denies that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, denies The Sacramental Essence Of Love, Of Life, And Of Marriage, by rendering onto Caesar or oneself, what belongs to The Ordered Communion Of Perfect Complementary Life-affirming and Life-sustaining Salvational Love, Through The Unity Of The Holy Ghost, The Most Holy And Undivided Blessed Trinity.

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Nancy
on July 02, 2020 at 09:24:02 am

Important post, important issue. Not to forget, one needs to update the Constitution not only to capture progressive principles, but further and even rather, to catch up with reality itself ( beyond principles). The invention of the internet for example, had profound and significant implications on reality and anyway legal reality. One must catch up with it. The same old principles, wouldn't suffice.

Also, worth to note, that in that case of Seila, it wasn't only the absolute power of the president as the head of the executive branch and his power to remove officials, but also, I quote (from the Syllabus):

" While the CFPB’s independent, single-Director structure is sufficient to render the agency unconstitutional, the Director’s five-year term and receipt of funds outside the appropriations process heighten the concern that the agency will “slip from the Executive’s control, and thus from that of the people.”

Also I quote:

" By contrast, the CFPB Director is a principal officer whose duties are far from limited. The Director promulgates binding rules fleshing out 19 consumer-protection statutes that cover everything from credit cards and car payments to mortgages and student loans. And the Director brings the coercive power of the state to bear on millions of private citizens and businesses, imposing potentially billion-dollar penalties through administrative adjudications and civil actions."

Thanks

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El roam
on July 02, 2020 at 09:50:22 am

I must amend my assertion re the Blaine Amendments as the work solely of the Democrat Party. Blaine was a Democrat who supported a constitutional amendment to bar state funding of private schools, but both political parties share responsibility for the long, successful, anti-Catholic campaign to adopt baby "Blaine Amendments" as part of state laws and constitutions.

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paladin
on July 02, 2020 at 10:53:40 am

McGinnis alludes to "balancing" at "...the majority had wrongly balanced the benefits of the regulation against the burden on the abortion right. Roberts stated that this was the wrong test, because Casey did not require such balancing. "

I will go further. It is not simply that it is the *wrong* test; it is that, in so many instances (if not all) it is simply wrong to have the Judicial arrogate to itself the "balancing" that by definition is the province of the Legislative. It matters not what level of "scrutiny" the Black Robes deploy, their Jesuitical reasoning / scrutiny they evidence, is intended, AND was so intended as a usurpation of the deliberative function of the Legislative and they have used that arrogated power to upset both the carefully constructed balance of powers underlying the regime and the "Burkean" balance of cultural norms and mores that may have otherwise sustained itself through the prescribed 'deliberations" of a freely elected body of citizens representatives.
Nice job if you can get it - and one from which it is damn near impossible to get fired.

Poor Hamilton - rolling over in his grave, no doubt as federalist #78 is no longer operative:
"The judicial branch has neither force nor will, therefore it can only exercise judgement."
All I see is will!

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gabe
on July 02, 2020 at 13:32:07 pm

June Medical is enough to drive a sane man crazy. Roberts relied on the stare decisis effect of Whole Woman's Health but modified that opinion by rejecting its two-pronged approach of balancing followed by undue burden, thereby conforming Whole Womans Health to Casey. Yet in his Whole Womans dissent Roberts did not quarrel with the Court's balancing test or challenge its alleged inconsistency with Casey.

It just shows that Roberts is erratic and perhaps not mentally stable in his exercise of (as you say) "will" or (as he would have us believe) "judgment.'' Maybe he has early onset Bidenementia!

I think Roberts change is of no substantive significance. The Casey Court used bailing wire to hold together the shipwreck of Roe. Yet, abortion jurisprudence is still a constitutional fantasy, wholly subjective and based on a judge's personal opinion and preference. Subjectivity reigns whether the test is balancing followed by an analysis of undue burden or as Roberts would have it, a one step test: undue burden analysis. The trial judge in June Medical substituted his personal opinion and seat-of-the-pants, closed door evaluation of cherry-picked evidence for the considered judgment of a majority of the state legislature (and of the governor) after the legislature's public hearings, investigation of facts and open debate. Then the Supreme Court deferred completely to the trial judge's personal opinion, disregarded the judgment of the legislature and Shazam! found an undue burden.

And I won't even get into the fact that the Court simply ignored the elephant in the room: do abortion providers have standing to protect a constitutional right (sic) of women. Here, the Court said the matter was not raised below so it would not be addressed. Yet standing and jurisdiction are central to whether a case or controversy are properly before the Court and if not raised by the parties, standing can be raised at any time sua sponte by three levels of courts.
It is morally offensive that those who profit in the abortion industry would have standing to expand it through the courts by defending a right they do not possess. Roberts should have tossed the challenge for lack of standing. Rehnquist would have done so.

Ridiculous! Roberts should be ashamed for running a deliberative body in such a shabby manner. Roberts, far more than any CJ I can think of, is obsessive-compulsive about the Court's public image, yet he is near-reckless in his management of that image.

I will not stop saying it: Very small man in a very big job!
We must hope that Trump will get two more appointments, so the public can have "The Five" that really matter.

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paladin
on July 02, 2020 at 16:13:48 pm

Absotively right re: Roberts and his near manic obsession with the image of SCOTUS,
I am always bad at acronyms - can't seem to remember them - I first thought BLM was for Bureau of Land Management (it appears that I WAS correct after all)
As to SCOTUS, it would appear that Roberts efforts to maintain and enhance the image of the Court has caused an evolution in the acronym for it: S-COTUS for Supracotus - OR AM i STILL HAVING PROBLEMS WITH ACRONYMS.
Funny! It seems to me that all this "balancing" and "scrutiny" has granted to the Judiciary that which it was denied at its inception by the Members of the constitutional convention, i.e. those powers associated with a Council of Revision - except that the Revision is now done post facto.
Say who really won the debates at the convention. I am no longer sure.

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gabe
on July 07, 2020 at 14:46:28 pm

Currently The Black Lives Matter Movement opposes protecting the lives of all beloved sons and daughters residing in their mother’s womb and of future generations, by their support of abortion, thus illuminating the fact, that for The Black Lives Matter Movement, not all lives matter.

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Nancy
on July 02, 2020 at 17:29:14 pm

Roberts quoted Burke thusly, "Because the ‘private stock of reason . . . in each man is small . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.'" I am still fuming about Roberts' rhetorical abuse. Burke's political conservatism was applicable to man in the polis and was based on the political interrelationship of tradition, prescription, morality, common law, natural right and an unwritten constitution, none of which offers support for invoking stare decisis to sustain an unfettered private abortion fabricated out of the emanations and from the interstices of a written constitution.

A Law Clerk must have dug that out of Bartlett's Famous Quotations, and Roberts liked the ring of it. (My neighbors boy named his new cat "Tom" because "it has a nice ring.")

Indeed, Burke would refute Roberts since were the Court to avail itself "of the general bank and capital" of the constitution it would, per Justice Thomas, clean up and balance its books and overrule almost all bad constitutional precedent, except where reliance interests or the risk of political chaos are ubiquitous and extremely high. If it's wrong, a precedent is not rightfully part of the "general bank and capital" of the constitution and failing to overrule it is to perpetuate bad credit.

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paladin
on July 04, 2020 at 08:35:36 am

Regarding “tradition, prescription, morality, common law, natural right”, and our Constitution, which serves for the posterity and the prosperity of this Nation, how can any reasonable person make the claim in regards to the erroneous Roe v. Wade ruling, and the error it continues to beget, that “Stare decisis“, requires a Judge to rule that it is possible for a human person to conceive a son or daughter, who is not, in essence, a human person, or that you were not you, from the moment of your conception, and I was not me, from the moment of my conception, that both you and I were conceived not as persons but as places or things, or as a part of a place or thing, and thus not endowed with our unalienable Right to Life, at the moment we were Created and brought into being as a beloved son or daughter at our conception. Certainly a judge who denies that every son or daughter of a human person, can only be, in essence a human person, could not claim this to be a self evident truth affirmed by stare decisis.

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Nancy
on July 05, 2020 at 13:36:15 pm

Roberts is ostensibly a Catholic, as he is ostensibly a constitutional originalist.
He should re-read the Constitution, reread Evangelium Vitae, recognize that his religious and legal conflict is a house divided against itself and overturn Roe and Casey as intrinsically erroneous. The reliance claims for stare decisis are not legally and morally grounded and are trivial when compared with the life vs. death reliance claims against stare decisis.

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paladin
on July 04, 2020 at 17:43:28 pm

If the judiciary decides to adhere to a constitutional precedent that it believes is demonstrably erroneous, then the justification for departmentalism would substantially increase in such a case.

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Andrew Hyman
on July 04, 2020 at 18:01:29 pm

If the judiciary believes a precedent is demonstrably erroneous but follows it anyway under stare decisis, then that case seems like a good candidate to be subordinated to departmentalism.

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Andrew Hyman
on July 07, 2020 at 15:18:25 pm

With all due respect, which Branch Of Government has the ability to provide any evidence that it is possible for a human person to conceive a son or daughter, who is not, from the moment they were Created and brought into being, at their conception, in essence, wholly human, and thus a human person, who will continue to grow and develop with the passing of Time? Certainly to claim that it is possible for the son or daughter of a human person to not be, in essence, a human person, any judge, would have to be guilty of “grave ethical and criminal conduct due to fraud”, for the purpose of denying Due Process, first and foremost for the affirmation of that innocent son or daughter’s Right to Life, the securing and protecting of which that same son or daughter’s Right to Liberty, and The Pursuit of Happiness depends.

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Nancy

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