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‘Settled Law’ and the Supreme Court

After President Trump’s nomination for the Supreme Court tonight I fully expect liberal heads to explode. All of the leaked finalists have a record that will send the left into a conniption. I’m expecting the nomination to be Judge Raymond Kethledge, but Trump might surprise me and nominate Amy Coney Barrett, who I believe would be the better choice. Regardless of who gets the nomination, the Democrats are going to be in opposition. As Senator Graham said this morning, the Democrats would oppose Trump’s choice even if it was George Washington.

The number one thing the left is worried about with this nomination is keeping abortion legal. I’ve lost track of how many politicians, pundits, and self-appointed political analysts on Twitter have adamantly demanded that Trump’s nominee be someone who will respect ‘settled law’ or ‘established law,’ and they go on to mention Roe v. Wade. They don’t seem to realize that the opinion to overturn is not Roe v. Wade but Planned Parenthood v. Casey (1992). In that decision, the Supreme Court created a new “undue burden” standard, where a regulation covering abortion would be deemed to be unconstitutional if it was intended to “place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”

Senate Minority Leader Chuck Schumer has joined the fray and is a good example of what has been coming from liberals. He was tweeting in opposition to the nominee being Amy Coney Barrett.

She disagrees with “stare decisis” – the idea that cases like Roe v. Wade are settled law in the courts – and instead has said she wants “space” for “reargument.” 
— Chuck Schumer (@SenSchumer) July 2, 2018

So what exactly do people mean by ‘settled law’ or ‘established law?’ Obviously, they intend it to mean that the law is set in concrete and cannot or should not be changed, for no other reason than because that’s the way they want the law to remain.

This is so ridiculous as to be laughable. For one thing, the Supreme Court does not make laws. They offer opinions. It’s debatable just how much power the Founders intended the Supreme Court to have. The argument can easily be made that the Court seized power it was not meant to have.

Tenth Amendment Center – Many of the founders espoused the view that the Supreme Court was not the sole arbitrator of all constitutional issues, and could not hold such power to make such irrevocable decisions. Thomas Jefferson famously made a political career of opposing the federal judiciary in rendering opinions as law. Realizing that the Supreme Court did not take up any of the appeals of those convicted under the Sedition Act, he drafted the Kentucky Resolution of 1798. Considering the development of the Marshall Court, he wrote that a general judiciary with the power to make such decisions as law was “dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” Jefferson wisely recognized the truth: “The Constitution has erected no such single tribunal” to operate in such a manner.

Regardless of intent, the opinions of the Court are viewed as law today and with abortion being sacrosanct to liberals Roe v. Wade and Planned Parenthood v. Casey are opinions that they cannot allow to be placed in jeopardy by a Constitutional originalist. Thus, the claims from Schumer, et al., that abortion is ‘settled law’ and cannot be touched.


By my count there have been at least one hundred twenty-five Supreme Court decisions that were overturned by a later Supreme Court decision, some in less than ten years. Additionally, there have been more than sixty Supreme Court decisions that were abrogated by subsequent constitutional amendments or statutes passed by Congress.

Were these more than one hundred eighty Supreme Court decisions ‘settled law’ that should not have been overruled or abrogated? Let’s look at a few of them.

  • Plessy v Ferguson (1896) overturned by Brown v. Board of Education (1954) – Plessy held the constitutionality of racial segregation laws for public facilities as long as the segregated facilities were equal in quality. Separate but equal.
  • Baker v Nelson (1971) overturned by Obergefell v Hodges (2015) – Baker held that a state law limiting marriage to persons of the opposite sex was constitutional.
  • Quill Corp. v North Dakota (1992) overturned by South Dakota v Wayfair, Inc. (2018) – Quill prevented states from collecting any sales tax from retail purchases made over the internet unless the seller had a physical presence in the state.
  • Betts v Brady (1942) overturned by Gideon v Wainwright (1963) – Betts held that indigent defendants prosecuted by a state were not entitled to counsel.
  • Pace v Alabama (1883) overturned by Loving v Virginia (1967) – Pace affirmed Alabama’s law criminalizing interracial marriage was constitutional.
  • Breedlove v Suttles (1937) overturned by Harper v Virginia State Board of Elections (1966) – Breedlove upheld the constitutionality of requiring payment of a poll tax in order to vote in state elections.
  • Dred Scott v Sandford (1857) abrogated by the Thirteenth (1865) and Fourteenth (1868) Amendments – Dred Scott held that slaves were not American citizens and had no standing to sue in federal court.
  • Minor v Happersett (1875) abrogated by the Nineteenth Amendment (1920) – Minor held that the Constitution did not grant women the right to vote.

Were these eight examples of Supreme Court decisions wrongly overturned? Were they ‘settled law’ that should have been left alone?

I challenge anyone who believes that Roe or Casey are ‘settled law’ to take the public position that separate but equal should still be the law. That women should not have the right to vote. That a black man can’t marry a white woman or a white man marry a black woman. That taxes can be due before voting. 

Of course, the truth is that they all know that Roe and Casey are not ‘settled law.’ Nothing is. The left is just adamant that abortion remains legal. They are terrified that abortion might one day become illegal.

In the coming days, whoever President Trump nominates to the Supreme Court will be ruthlessly grilled by Democrats on the Senate Judiciary Committee. They will try every approach possible to get the nominee to agree that Roe is ‘settled law’ and is not to be overturned. And then they will all vote no, no matter the responses from the nominee.

Settled law? Hardly. The only thing that’s settled is that liberals love killing babies.

Update 7/9/18 9:00PM
President Trump has wimped out and selected Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit. While Judge Kavanaugh is certainly more conservative than anyone Hillary Clinton would have nominated, he’s had some troubling rulings involving religious liberty. I’m marking this down as a loss for true conservatism.

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