The P-Word

Dr. Malcolm Cross

As Republicans and Democrats battle over President Trump’s Supreme Court nominee, one issue will probably become more important than any other—the degree to which President Trump’s nominee will accept previous Supreme Court rulings as precedents, or guides, for making future rulings.  The Democrats, in particular, are fearful that the nominee, if confirmed, will help make the Supreme Court more conservative and therefore more likely to overturn cases such as Roe v. Wade, which claimed to discover a constitutionally protected right to an abortion, or Obergefell v. Hodges, which announced a constitutionally protected right to marry a person of the same gender.  Bur rather than debate the particular merits of those cases,  the Democrats simply tell us is that once the Supreme Court makes a decision, it should be accepted as a precedent and that future Supreme Court cases with similar facts and questions of law should be decided the same way, with the same results.  Therefore any nominee who questions this doctrine will face intense and bitter opposition.

But not all Supreme Court cases produce good precedents.  Those who believe that precedents must always be respected and never overturned should consider the following questions:

First, the Dred Scott case, decided in 1857, said that slavery was a constitutionally protected property right which the United States government had no right to abolish, and that African Americans, whether slave or free, had no rights protected by the U. S. Constitution. Should we have allowed this to be a binding precedent?

And what about Plessey v. Ferguson, which established the “separate but equal doctrine,” saying racial segregation was legitimate as long as facilities for African Americans were equal in quality to those of whites?  Was the Supreme Court right or wrong to overturn this judgement with Brown v. Board of Education?

Or consider the Kilo case, wherein the Supreme Court said it was okay for a local government to confiscate (with compensation) the land of a poorer property owner and give it to a wealthier owner if the latter would enhance the property’s value and pay more taxes to the government.  Is it right to let the rich take from the poor, even if the poor don’t want to part with their property?  If not, shouldn’t Kilo be overturned rather than respected as a precedent?

Which brings us to Baker v. Nelson, a case decided by the Minnesota Supreme Court and upheld by the U. S. Supreme Court, which denied a gay couple the right to marry.  Was the Supreme Court right or wrong to ultimately overturn Baker with Obergefell in 2015?

For the Democrats to say that precedents once established by the Supreme Court cannot be questioned is to say nobody can question the right to own slaves, the propriety of racial segregation, the right of the rich to take from the poor against their will, or the power of the government to ban same-sex marriage.  But is that what the Democrats mean to say?

Of course not.  No doubt the Democrats would say that Dred Scott, Plessey v. Ferguson, and Baker v. Nelson were wrongfully decided and should have been overturned.  They might even dislike Kilo, even though by allowing the rich to take from the poor, the rich get richer and can, therefore, pay more taxes to their local governments, which allow the governments to do more.  But in their zeal to protect Roe v. Wade from even the possibility of challenge they have forgotten the instances in which the Supreme Court has issued decisions that are questionable, if not downright vile, as well as instances in which the Supreme Court has overturned previous cases.

Of course, for the sake of consistency and predictability, the Supreme Court must take precedent seriously.  But that should not mean that a precedent should never be questioned and always be accepted.  The Supreme Court should retain the freedom to overturn decisions it thinks it made in error.  And We, the People, and the political parties we support, should be more eager to have free, fair, open, and vigorous debates on public policy questions of great import, and less tolerant of those decision makers who argue that once a decision is made, it can never be questioned, revised, or rejected.  We should have faith that the good decisions will stand the test of time without artificial and arbitrary rules to protect them.

Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.


  1. Another decision I should have mentioned is the Korematsu case in which the Supreme Court said it was constitutional for the government to prison American citizens of Japanese ancestry during World War 2. A good or bad precedent?

  2. The rule of law should reflect the collective values of the society it is meant to protect and “settled law” should be CAREFULLY revisited to “expand” individual liberties and extend contitutional protections to a larger portion of the populace. In each case listed above, precedent was overturned to include more of our citizens in the “great experiment” that is the United States of America.

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