Source: New York Times

Questions for Debate:

1. Is Gonzales right? Is the Supreme Court not bound in any way whatsoever by precedent in constitutional law? Even in precedent that they themselves set?

2. If true, should the standard be, as Gonzales suggests, that the judge only need to believe the law "wrong"? What about whether or not the law is constitutional?

3. Is Gonzales attempting to make a case for "judicial activism" as it concerns Roe-vs-Wade at the Supreme Court level, by conservative judges who may be looking to overturn that ruling? Why or why not?

1] History shows this is the case, though not often. The Supreme Court has occasionally reversed itself. I think they do and should follow precedent to a degree, but if an old ruling is clearly wrong (Separate but equal proved to not be equal for instance) then they can reverse it. Any Supreme Court decision MUST be based on the Constitution however.
2] No, they should be able to demonstrate it being Constitutionally wrong, not just a feeling.

3] Yes, I believe he is. I do not believe he has much reverence for the Constitution. This is the man after all who has told George Bush that we may torture people despite it being clearly unconstitutional. This is also a man who has encouraged Bush to ignore the body of International Law and treaty our nation has stood for and fought for since our inception nearly. Gonzales makes me think more of Otto Thierack or John Mitchell than say a John Jay or Thurgood Marshall. I naively thought it would be hard to get worse than Janet Reno in that job but Bush has done it twice. . . .

1. Is Gonzales right? Is the Supreme Court not bound in any way whatsoever by precedent in constitutional law? Even in precedent that they themselves set?
"Bound" is too strong a word. The Justices are under a heavy obligation to respect precedent, because overturning a precedent throws out all the case law that is consequential to that precedent, creating a huge legal mess. Moreover, every time the court overrules a precedent, it diminishes the respect that will be accorded to its own future decisions. What goes around comes around. Throw out a previous court's decisions and you might find your own decisions thrown out in the future.

2. If true, should the standard be, as Gonzales suggests, that the judge only need to believe the law "wrong"? What about whether or not the law is constitutional?
I suspect that in this case Gonzales means "legally incorrect", not "morally wrong". I don't think that a justice should seek to overturn precedent merely because he thinks that precedent incorrect. I would expect a justice to refrain from overturning precedent unless he can build a rock-solid case against it.

3. Is Gonzales attempting to make a case for "judicial activism" as it concerns Roe-vs-Wade at the Supreme Court level, by conservative judges who may be looking to overturn that ruling? Why or why not?
It seems clear to me that this is a political statement on Gonzalez' part, and it does disturb me that Gonzalez seems happy to permit political expedience to guide his professional judgment. I would much prefer to see apolitical judges, and Gonzalez does not strike me as apolitical.

1. Is Gonzales right? Is the Supreme Court not bound in any way whatsoever by precedent in constitutional law? Even in precedent that they themselves set?

Precedent needs to be considered, but it is not binding. In fact recently the Missouri Supreme Court ignored the United States Supreme Court's ruling on the juvenile death penalty. What happened? The USSC reversed their prior ruling. Plessy v. Ferguson was law for 58 years. I think few would argue that it was judicial activism that resulted in the Brown v, Board decison.. IMO, overruling the use of the juvenile death penalty was judicial activism overruling Plessy was not. Plessy was a conservative case of judicial activism.


2. If true, should the standard be, as Gonzales suggests, that the judge only need to believe the law "wrong"? What about whether or not the law is constitutional?

Either you or me is misunderstanding Gonzalez here. I believe what Gonzalez is saying is that if you believe the precedent setting decision was wrong you can reverse it. I have already given historical examples of this occuring.


3. Is Gonzales attempting to make a case for "judicial activism" as it concerns Roe-vs-Wade at the Supreme Court level, by conservative judges who may be looking to overturn that ruling? Why or why not?

IMO, Roe v. Wade was judicial activism. Abortion should be a state issue. Overruling Roe v. Wade would be an assist in the return to constitutional government. Just like Plessy was overturned so should Roe. Unlike some issues where precedent has to be strongly considered, such as the woeful 1937 decision allowing Social Security, Roe can be overturned and the issue of abortion can go back to the states without causing anyone serious harm.

1. Is Gonzales right? Is the Supreme Court not bound in any way whatsoever by precedent in constitutional law? Even in precedent that they themselves set?

The Supreme Court is the highest court of the land and is not bound by any past decision-- even its own. However, the Court rarely overturns one of its own decisions. Most justices will respect established precedent even if they believe it was wrongly decided in the first place. Instead, the Court will read the holding of the questionable decision very narrowly so that it has no significant force in the future.

2. If true, should the standard be, as Gonzales suggests, that the judge only need to believe the law "wrong"? What about whether or not the law is constitutional?

When Gonzales says "wrong" he means constitutionally wrong, not morally wrong. Whether a decision is "wrong" in a constitutional sense depends in large part, on the judicial philosophy of the judge. A textualist or originalist will say that Roe v Wade was wrongly decided because of the lack of textual support and not because of any moral judgment on the result or substance of the decision.

3. Is Gonzales attempting to make a case for "judicial activism" as it concerns Roe-vs-Wade at the Supreme Court level, by conservative judges who may be looking to overturn that ruling? Why or why not?

Of course not. It would not be judicial activism in the usual sense, to overturn Roe as bad constitutional law. Roe itself was judicial activism in the same way that Dred Scott was judicial activism. The decision is not supported in the text of the constitution. That having been said-- most judges will respect precedent that has become established in our law, like Roe v. Wade. Justice Scalia, who has been extremely outspoken about how Roe is bad law, accepts that it is now the law of the land.