Comments on: Change of Direction http://www.outsidethebeltway.com/archives/change_of_direction/ Online Journal of Politics and Foreign Affairs Thu, 26 Nov 2009 15:35:48 -0600 http://wordpress.org/?v=2.8.5 hourly 1 By: McGehee http://www.outsidethebeltway.com/archives/change_of_direction/comment-page-1/#comment-253450 McGehee Mon, 17 Dec 2007 20:20:33 +0000 http://www.outsidethebeltway.com/archives/2007/12/change_of_direction/#comment-253450 Dodd, I'd read OTB more often if you were posting more often... Dodd, I'd read OTB more often if you were posting more often...

]]> By: Simon http://www.outsidethebeltway.com/archives/change_of_direction/comment-page-1/#comment-250572 Simon Wed, 12 Dec 2007 14:37:31 +0000 http://www.outsidethebeltway.com/archives/2007/12/change_of_direction/#comment-250572 Stare decisis is at its peak in statutory construction, precisely for the reason that the court's opinion notes - if the court gets it "wrong" (so to speak) Congress can respond by changing the law. Moreover, this didn't require the court to overrule <i>Smith</i> (even those who would stretch language to say that one "uses" a firearm when trading it for drugs will concede that it would be preposterous to say that one "uses" a firearm when <i>receiving</i> it in payment for drugs, presumably hence Justice Thomas' presense in both the <i>Smith</i> and <i>Watson</i> majorities), so even if the court said it would do so, it'd be dicta. I would think the more noteworthy point here is that in such a case, Justice Ginsburg is willing to call for a relatively recent statutory precedent to be overruled in a case that doesn't strictly require doing so. This despite her willingness to join in the bleating about stare decisis last term from the court's liberal bloc! Any time Ginsburg says "stare decisis" critics can destroy her credibility by pointing to her concurrence here and say "if you wrote that, there, tell us how you can ever appeal to stare decisis." Stare decisis is at its peak in statutory construction, precisely for the reason that the court's opinion notes - if the court gets it "wrong" (so to speak) Congress can respond by changing the law. Moreover, this didn't require the court to overrule Smith (even those who would stretch language to say that one "uses" a firearm when trading it for drugs will concede that it would be preposterous to say that one "uses" a firearm when receiving it in payment for drugs, presumably hence Justice Thomas' presense in both the Smith and Watson majorities), so even if the court said it would do so, it'd be dicta.

I would think the more noteworthy point here is that in such a case, Justice Ginsburg is willing to call for a relatively recent statutory precedent to be overruled in a case that doesn't strictly require doing so. This despite her willingness to join in the bleating about stare decisis last term from the court's liberal bloc! Any time Ginsburg says "stare decisis" critics can destroy her credibility by pointing to her concurrence here and say "if you wrote that, there, tell us how you can ever appeal to stare decisis."

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