Sunday, March 27, 2005

There's always more to it than meets the eye

It can be said that up 'til now I have been fairly relentless (and possibly stubborn) in siding with one party on the Terri Schiavo case. Of course, I'd like to think that "party" is Terri herself, with a strong second to the law. And to reiterate a point that I've made continuously, we don't really know what Terri's wishes were--but we do know the law.

Which also means that we know the limits of the law: the law was never meant to decide these types of situations.

I have been "understanding" ("supportive" was the word I initially used, but that doesn't seem exactly correct) of Judge Greer's order to cut off hydration and nourishment for two reasons: a) he was in a court room that I was not and he has experience in these matters that I do not; and 2) with the cards supposedly "stacked against" a conclusion of ending life, he still found clear and convincing evidence that Terri would not seek continued life in her condition. To me, that means that the evidence must have been deemed both reliable and overwhelmingly in favor of the conclusion that was reached.

And then I read something like this (hat tip to Powerline). Now I have no way of knowing that what this lawyer that e-mailed author Steve Sailer is right--and I find it EXTRAORDINARY that ANY lawyer would allow valuable testimony contrary to the interests he/she is representing to be entered into consideration without a challenge of some form (in this case a deposition). . . but it does raise the question: how much of Judge Greer's decision is the result of a difference in the quality of lawyer? I would LIKE to think that the answer is none--but I know that can't be right because good trial lawyers DO make a difference in a case. Is it enough of a difference to overcome a pre-disposed judgement against the position taken by a talented lawyer? Of course it is--I just don't know that it happened here.

(I also point you to the above-linked article simply because later in the page, that same lawyer gives one of the best "what happened to Congress' law" explanation I've read anywhere. To reiterate THIS point, I am no fan of the law that Bush signed early Monday morning simply becuase of the constitutional implications of such a move--although even I was surprised that a temporary injunction was not granted in order to review the law and the actions called for by the law.)

And in company with the above article, read my brother, who links to this article in writing about an attempt to give Terri the sacrament of communion on this holiest of holy days on the Christian calendar. I agree with my brother's take: IF it poses no health and safety HAZARDS to Terri, why deny her the next-to-last sacrament she will receive? And why, Mr. Michael Schiavo, open yourself up to "evidence" that you seek to prevent Terri from practicing her religious beliefs?

I'm all about giving Judge Greer the benefit of the doubt--that his finding was a result of clear and reliable evidence that spoke of Terri's mindset as best we can judge it after-the-fact. (I would be interested to see his notes on the case, just for curiousity's sake) I'm not, however, so willing to give Michael such a benefit. I guess it's a good thing that Judge Greer pretty much discounted Michael's testimony from the get-go (or at least that's how I read the decision).

Of course, it really doesn't matter now. May we all pray for Terri's soul as it draws ever nearer to its final stop.

Wednesday, March 23, 2005

Back to the source--UPDATED

More on Terri Schiavo for those who are wondering what started this legal mess:

It should be noted that Michael was not the only one to offer testimony that amounted to "clear and convincing" in Judge Greer's eyes. There was also Terri's brother in law and sister in law--not that THAT little factoid totally removes suspicion.

The decision by Judge Greer also allows for a conflict of interest on BOTH sides of the case, although he really only uses it to dismiss Michael as a stand-alone witness. Indeed, the Judge's claim of a financial conflict of interest with regards to Terri's parents is essentially an aside, just to present the fact that there would be a financial aspect to them gaining guardianship of Terri--not that such a result is in any way, shape or form a guiding interest in the Schindler's attempts to keep Terri alive.

Ultimately, both Judge Greer AND an appellate court decided the evidence was clear and convincing (in legal terms).

And it should be noted that legal precedent in Florida clearly states that a court's default position should be in favor of life.

Go here for a look at the appellate court's affirmation of Judge Greer's decision to remove Terri's tubes.

UPDATED: Mrs Schindler hit on something yesterday that has left me puzzled, too: why hasn't the FL legislature gone back and taken another attempt at "Terri's Law". Obviously not the same law--something more judicially friendly that also accomplishes the same goal.

Tuesday, March 22, 2005

Quick Hits--UPDATED

All about Terri Schiavo, as you might imagine:

1) This weekend, I heard the proposed "exit strategy" for poor Terri described as murder. I hasten to disagree, strictly in a legal sense. "Murder" implies wrongfulness, and that just doesn't exist here. If it can be proven (beyond a reasonable doubt) at some point in the future that Michael Schiavo's intentions are less than commendable, than he may very well have to face a murder rap. Or at least a "contempt" charge for his testimony in the hearing that Judge Greer held. BUT UNTIL THAT PROOF EXISTS, this is not a wrongful death. Tragic, gutwrenching and totally avoidable, yes; wrongful, no.

(As an aside, if Terri expires for any reason that is preventable with the treatment she was receiving as recently as last week, I would not be surprised if Michael has civil action initiated on him.)

2) Some have quipped that the manner of death currently facing Terri is "cruel and unusual". . .the problem is that no protections exist against such TREATMENT. The 8th amendment affords protections against cruel and unusual PUNISHMENTS--and over two centuries of case law, almost every decision has dealt with the rights of the incarcerated or those not "civilly" free (my phrase that has its roots in historical decisions). Not much in the way of nursing home problems, health care decisions. . .and situations such as Terri's.

And by-the-bye, IF prolonged life in a vegetative state actually IS against Terri's wishes, then what the Schindler family is proposing to do IS cruel and unusual also. The problem here stems from the fact that WE DON'T KNOW WHAT TERRI WOULD WANT TO HAVE DONE TO HER LIFE!

3) It is easy to create an impassioned defense in the name of Terri's life. It is simple to see that a) she is alive; b) the measures that are taken to keep her alive are not overly dramatic; and c) that there are people willing to care for her, even in her "state". It is not so easy to create a defense for her husband's stance.

But that doesn't make it wrong.

First, no one can PROVE that he is acting improperly in accordance with what TERRI WOULD HAVE WANTED DONE. And lets not forget--what we're looking for here is a resolution MOST LIKELY to be the same one that Terri would have chosen.

Secondly, how ticked off would you be if our living will (if you have one, which you ABSOLUTELY SHOULD) were contested by ANY PARTY. I would like to think if I ended up in a PVS that my wishes, as expressed either to my loved ones or in writing, would not be challenged by anyone, even family members who might wish a different fate for me. To be honest with you, my family's agenda doesn't mean squat--MY will is the focus of debates such as this. And I have yet to hear--in fact, the argument has yet to be made compellingly--that Michael is not acting in accordance with Terri's wishes.

Thirdly, and I hate to say this but it's got to be said: this is about more than one life. At this point, this issue is about how our government proceeds in the face of challenging situations. While there are clearly times when the Federal Government needs to exercise its oversight of the state's responsibilities, there has been no evidence submitted that either: a) Florida's laws are unconstitutional, incomplete, or otherwise lacking with regards to the rights they extend to the state's citizens; or b) that Michael has acted outside the reach of those state laws. While the law in Florida--and possibly in other states--may need to be CHANGED to reflect the current mindset of the citizenry, there are procedures in place to do that. Those procedures are not, nor should they be, a federal law designed for one-time use that calls into question (or totally overrules) other fully-legal statutes of that state's laws.

And for the record: it's always about more than one life. While it is easy to decry these proceedings as harmful to Terri's LIFE (not her WILL or her RIGHTS, mind you--just her life), government has a responsibility to act in a manner most appropriate for ALL of its citizens. As such, there is no such thing as a non-precedent-setting piece of legislation. And the precedents set yesterday are, as I have detailed before, NOT the kind that I believe should be set.

UPDATED to change an inadvertent wording error in paragraph one.

Monday, March 21, 2005

Inconsistencies abound--UPDATED

In my own positions, that is. . .or so it would appear. But give me a moment, if you would.

The President signed this morning into law the bill that would grant Terri's parents the standing to file in a U.S. District Court for a review of possible violations of Terri's Constitutional rights.

I am not a fan of this bill.

Why, you might ask, would I "side" with a mostly-Democratic party position that calls for the court-ordered removal of the feeding tube from Terri Schiavo? Why would I, a person who values life more than choice, be of the mind that this life should be ended?

Here is why: because defending the principles of this country are more important than one life.

Because I believe that the proper avenues to get a result other than this have been exhausted, all to no avail.

Because this law is atrocious. For starters, it grants standing to file a suit on behalf of Terri to someone who is not Terri's legal guardian and who it cannot be proven has Terri's WISHES more at heart than her legal guardian. Then it basically throws out any ruling made in the Florida judicial system about the rights pursuant to the law--you know, ALL of Terri's constitutional rights. Apparently the state of FL doesn't make its decisions in accordance with the Constitution, or at least that's what I get from this legislation. Thirdly, this law clearly states that it is not enacted for precedent's sake. I have to ask: if the law is so precise as to only apply in one possible case, then maybe the "possibility" that should be considered is that the law is an overreach of rights already present in our legal system. Lastly, here is the Sense of the Congress: "It is the Sense of Congress that the 109th Congress should consider policies regarding the status and legal rights of incapacitated individuals who are incapable of making decisions concerning the provision, withholding, or withdrawal of foods, fluid, or medical care." And that's well and good--except that such policies ARE ALREADY IN PLACE! And amazingly enough, the policies got in place without anything as dramatic as this law.

Again, I must reiterate: WE STILL DON'T KNOW THAT TERRI WOULD WANT TO BE KEPT IN A VEGETATIVE STATE. When her closest campanion in life says otherwise, why can we not--as a society--accept that as the way she would want things to be? And why would the Congress feel it knows Terri's will better than her husband?

Indeed, why do any of us think that?

BUT, on the other hand, I do agree with crux the President's statement: "In cases like this one, where there are serious questions and substantial doubts, our society, our laws and our courts should have a presumption in favor of life".

I agree that our society, our laws and our courts should have a presumption in favor of life. . .but they don't. Not currently, at least. In fact, the word "should" frightens me in a legal sense--it shows that a course of action is NOT in accordance with the laws of the day. Change the laws AT THE APPROPRIATE LEVEL AND THROUGH THE APPROPRIATE PROCESS. A one-time federal interference is neither of those.

And for the record, I DON'T think there are substantial doubts here. At least not in a legal sense. And from that one statement grow my problems with how this is playing out.

Also, I am not a big fan of a big federal government. This is an issue that has been decided at the state level, has been appealed at the state level--basically it has been exhausted at the state level. There are already appeal processes in place FROM THE STATE LEVEL, and those appeals processes have also been exhausted. In other words, 200-odd years of precedent, procedure and protections of a citizen's rights have been utilized by the Schindler family--but since that doesn't yield a "proper" decision our federal government feels it is necessary to go to this extreme measure? Where does this end? (By the way, I have an answer for you: as much as the legislation says to the contrary, it WILL NOT end here. Guaranteed.)

I have a feeling it doesn't matter--this law won't pass any "Constitutional" test as determined by the courts. Or so say I. . .but I've been surprised by the courts before--ESPECIALLY on matters where governments are assuming powers that I would think they don't have.

It's going to be a crazy week.

Sunday, March 20, 2005

On Terri Schiavo. . .

First of all, if you have the patience to set aside your emotions for a minute and look at this amazing case through the law's eyes, go here.

It is the biggest news of the weekend, and I feel that I should comment. In fact, I have done such on my brother's site, where he posted on Friday night about this case. I responded, was rebuked (kindly), and again responded. But as I really looked into the case (through the website linked to above), I realized that even my understanding of the case as I was making my comments was not nearly complete. So here I will hope to put things clearly. . .or at least as clearly as things can be for me.

First and foremost, I have to ask the question: what would Terri do? If she had known 16 years ago that she was soon to be left in the state that she is now in (and has been in for 15 years), what would she have directed her loved ones to do? Of course, we don't know what she would have done. And that's where the "problem" begins.

This case is not about what the parents want to do to Terri, or what the husband wants to do to Terri--it's about what Terri would want to do to Terri. And of course the answer to that is open to debate--a debate that has even resulted in judicial involvement.

And when the judiciary got involved (in the form of the case being heard by a Judge Greer), they heard arguments presented by both sides. And then the judiciary got involved again to determine if Terri's condition was actually PVS (persistent vegetative state). Experts from both sides of the aisle were heard in that case also, and both sides presented their arguments to their own satisfaction.

The result of all this: the judiciary has ruled (in opposite order) that Terri is in a PVS; and that had she been able to address her condition herself, she would not have sought to use the measures currently in place to keep her alive. Those were the court's decisions, and those decisions have been upheld on appeal.

So now it comes back to Michael, Terri's husband. What does he do? Well, first it must be known that for the last several years, he has thought that Terri would not want to be the recipient of the measures that are in place. ALL HE HAS DONE IS ACT IN THE MANNER THAT HE THINKS TERRI WOULD HAVE WANTED. And while there may be an ulterior motive for his choice (the rumors fly like crazy that there's a money angle involved), there is NO EVIDENCE that Mr. Schiavo does not have Terri's interests--or at least her wishes--at the helm for the course he has chosen. That is why he does not seek divorce, or any other means to give guardianship of Terri to her family or to anyone else--he doesn't think that they
have HER wishes in mind. And the fact is that no EVIDENCE consists to the contrary--only wild innuendo.

What it has come down to: Terri currently does not have a feeding tube in her (as of Friday). Without the tube, she will die of starvation in 10 to 14 days. There are actions aplenty to change this state, and even the President is expected to move in a manner that returns the tube to Terri. But none of that has happened yet; as of this posting Terri is basically sentenced to death.

How do I feel about all this? Well, I am torn. First of all, I cannot possibly know what Terri would have wanted to do in this case. Ultimately, getting an outcome that is closest to her unknown wishes is what I hope is done--and who is to say that she would have wanted to have continued this long in a PVS, much less to continue in that state? In fact, the courts have determined otherwise, and her closest companion in life believes otherwise, so I am inclined to follow those determinations.

But this manner of death seems to be inhumane--even if not for Terri, then for all those who have fought for her life. I don't know what exact kind of "pain" she will feel, but I imagine that this is not the manner in which she would choose to expire simply because her loved ones will be absolutely devastated to watch her waste away. In short, I can't imagine that the current plan would be acceptable to her.

So what next? Can the question be changed so that it's not "would Terri like to be kept alive in this manner?" to "would Terri choose to have her life ended this way?"

I do know this much: I don't think that even the President is going to be able to save her. Not for the long term, at least.

Friday, March 18, 2005

about this Senate filibuster thing. . .(UPDATED)

The blogosphere is alive these days with talk of the "Constitutional" option to change over 200 years of Senate rules governing debate procedures within that body of government. Of course, by calling it the "Constitutional" option, you already know on which side of the debate I fall. The other monicker--the "nuclear" option--is how the left is calling the conservative's move to make a 41-person plurality a ruling force in the Senate a thing of the past. I'll let you decide how you want to describe this issue--although I will say this: neither title is even close to correct.

Earlier this week, leading Dem Senators participated in a rally. The entire reason for the gathering was "discussion" of the Senate filibuster. And, as you might imagine, there was all sorts of press covering the event. And, I gotta tell you, IF you took these esteemed Senators at their word, you would think that the GOP--including the President--has gone mad Mad MAD with power!

But the reality is something significantly short of that. Let's take a quick walk through this issue, just to put it in terms of facts rather than agenda:

THE RULE: Filibuster has supposedly been on the books of Senate procedure for 217 years (a number quoted by Harry Reid yesterday). But "the book" that is referred to here is not "the Constitution"--or at least not as clearly is it written in that venerable document as the press and the Dems would have you believe. The Constitution, in Art. 1, section 5, merely authorizes the Senate to make its rules of procedure. Those rules (go here to see for yourself) don't even USE the word "filibuster", although it describes (as part of rule IV and rules XXII) a process by which debate on a certain topic can be ceaseless within the confines of a Senate session. In fact, it is important to me to note that rule XXII refers to the action of "filibuster" only by talking about the means to end it, that being "cloture" (which IS actually used in the text).

But to the point: this debate on "filibuster" is about one of two things. Either it's about the judges themselves or it is about the sanctity of the rules of the Senate. Since NONE of the Dem leadership would dare tell you that they are taking this stand "about the judges" (in fact, most of them say exactly the opposite), then their whining to the media MUST be about the rules of the Senate. . .which, if I'm not mistaken, is an animal that THEY (as Senators) help/helped create and that they all knew full-well was in place when they decided to run for the Senate. Really, how appealing is it to the average American that these aristocrats are boo-hooing on the evening news about the rules of the game that taxpayer dollars allow them to play?

Hat tip to several sources, including my brother who assembled some of the talking points for this post.

UPDATE: I had read the Rules of the Senate, and thought to myself "how do 51 Senators get beyond the provisions of Rule V and Rule XXII to bring "majority rules" to the filibuster issue? For an exhaustive answer, go here. (I highly encourage you to do so, as you get to look at some great moments in the young Senate terms for both Kennedy and Byrd. . .my, how their tune has changed!) If you don't have that kind of time, here is the concluding paragraph:

"Article I, Section 5 of the U.S. Constitution empowers the Senate to “determine the Rule of its Proceedings.” In 1917 and on many occasions since 1917, the Senate has debated whether this
constitutional rulemaking power allows a simple majority to alter the Senate’s Standing Rules at will. At least four times, changes to the Senate Standing Rules were influenced by attempts to use the constitutional option. And throughout Senate history, a simple majority has changed Senate procedures governing debate by setting precedents or adopting Standing Orders that altered the operation of the Standing Rules without amending their actual text. Over two
centuries, the Senate’s constitutional rulemaking power has been exercised in a variety of ways to change Senate procedures. As Senate parliamentary process further evolves, this power plainly will be exercised again. At issue is when, how, and to what effect."

Wednesday, March 16, 2005

Mid-term Exam: reading the American people

Inspiration for this article: Sen. Reid's statement yesterday that the Dems will shut down the operation of the Senate if the GOP proceeds with changing the rules on filibustering.

This threat, to me, has "empty" written all over it. For starters, as long as the Senate continues to address "essential" issues, I feel that the show is going to go on as normal. Since every bit of legislation--and therefore every committee meeting, floor debate, etc.--has the potential to impact thousands if not millions of Americans, all Senate business is "essential" to a part of the populace to which the individual Senators are accountable. Sure, the Dems might hold down the pace of operations for a month or two, but it certainly wouldn't last for the rest of the session. And I also believe that Senators that participated in this activity would be looking to find a new job at the end of their term. I'm not saying that the seat would switch Republican; I'm saying that most Americans--even liberal ones--don't believe hefty amounts of our tax dollars should pay the salaries of people who choose not to do their job. You can stand on "ceremony" all that you want, the bottom line is that a Senator should be in Washington D.C. representing the needs of all Americans. . .which is kinda hard to do when you willfully don't even go to the office.

But here is the "interesting" thing to me: the Dems are playing this according to the old "appeasement" playbook. They feel threatened by an activity that they feel is unjust; they have sought protections from every possible corner; and now they are making threats. (This is normally how a "power" appeases a vocal "minority"--in this case the roles are reversed. But that doesn't change the "rules" of the game.) In the old days, this would have been enough to get their goal: "appeasement" in the form of Senate GOPers stopping plans to end the filibuster reforms. Heck, in the old days they might have even accomplished that after simply identifying the "injustice" and using their allies in the media to broadcast the Dems' message.

But this isn't the old days. Today, we have seen what real leadership can do in the face of the historical tide of appeasement. Today, we know that threats must be considered--but not necessarily shirked away from. And today, we know that "business as usual" is not the proper way to do business.

I hope that Sen. Frist and his colleagues have learned those lessons as well.

And I hope that Sens. Reid, Boxer and the like are given another strong rebuke about the manner in which they represent the needs and wants of the American people. Unfortunately that measure won't come to fruition for several more years. . .but I can be patient.

Tuesday, March 08, 2005

Letting my cynicism shine through

Not often do I allow a "doom and gloom" outlook become the principal manner of how I view developments throughout the world. I feel that optimism is a powerful force for dealing with unfortunate realities--not to mention it does wonders for fighting off ulcers!

But sometimes. . .sometimes. . .you take a look at something, and the voice in your head says "that's a really bad idea!" And you reflect on that observation for a while, only to realize in the end that good/bad is not going to carry the argument. The masses are lined up against a "proper" outcome, and it is only a matter of time until this "bad idea" becomes enacted.

The source of today's despair? The Count Every Vote Act of 2005 as introduced by Sen. Clinton and Sen. Boxer on the Senate Floor about 3 weeks ago. In a nutshell, it is the Democratic response to the voting irregularities of the last two national elections. It supposedly provides for greater access to the voting "process" and places strict limits on activities that might lead to "disenfranchisement".

Now I've got to say that clearly the election "process" in this country needs some tweaking. I am 100% in favor of measures that make electoral fraud harder to perpetrate. To me, the last two national elections show vote FRAUD to be the biggest problem, and a national recognition of that problem (real problems, like in Milwaukee, rather than trumped-up (NOT non-existent--although I'm not convinced that they do exist--just trumped-up) problems as in Ohio)--possibly even a national direction of how to deal with that problem--is something that I would love to see.

But of course, the CEVA has almost nothing to this end. It appears that the big lessons the Dems learned from this last election is that voting machines are good, that same-day registration is good and that provisional ballots are good. And while I agree that all 3 avenues are excellent ways to expand voter access IF MONITORED PROPERLY, these also happen to be 3 avenues that bear the greatest fruit for electoral fraud. Of course, the CEVA calls for no specific limits and regulations on these methods of voting--it just calls for more More MORE!

My biggest beef, however, comes from the part of the CEVA that would allow ex-felons to vote. FOR THE RECORD: I could care less if felons vote in an election. In fact, a truly reformed ex-con totally deserves the ability to vote. That description would open up a Pandora's box of debate: "what does truly reformed mean", etc etc etc. . .but I do believe that if you have done your time and adjusted well to society upon reentry then you should have your rights returned to you. But honestly, this is all beside the point!

The reason that I hate this provision in the act is straight from Sen. Clinton's mouth. When she co-introduced this act on the Senate floor, this is what she had to say: "An estimated 4.7 million Americans are not eligible to vote as a result of felony disenfranchisement laws that apply in 48 states and the District of Columbia."

48 states! Think about that--all but 2 states have declared ex-felons ineligible to vote--BUT THE DEMS THINK THAT THE OTHER 48 STATES ARE WRONG!!!

I'll let you decide the Dems' motivations for moving in this manner. I'm too cynical at this point to keep emotional thought out of my analysis. I'll just say it this way: this stinks!

I do not believe that the U.S. Senate--indeed, the U.S. Government--should seek to overturn the states' right to govern their populace--ESPECIALLY in the face of an overwhelming majority, as in this case. This is Big Brother-type government at its finest, brought to you by the biggest believers in Big Brother: the Democratic Party!

But now for why I'm REALLY PEEVED: I think CEVA will die a slow, public death--if not in the Congress itself than in the Oval Office. BUT, given the activism undertaken by the SCOTUS recently, I think there is a strong possibility that--someday--those 48 states will be told that their disenfranchisement laws for ex-felons constitute a violation of the 8th amendment.

And once again the states will lose their right to govern at the feet of the U.S. Government and its agents.

Wednesday, March 02, 2005

Precedent? What Precedent???

Refer to SCOTUSblog for in-depth coverage on Roper v Simmons, the recent Supreme Court case where the Court ruled that the death penalty for juveniles is unconstitutional.

I find this case interesting not because of the decision itself but rather because of how this decision "defines" the term "national consensus" as a deciding factor in overturning a previous SC decision. The overturned decision in the Roper case was Stanford v Kentucky (1989). The Stanford decision had two major thrusts: that state statutes calling for the death penalty for people between the ages of 16 and 18 was not unlawful (subject to the legislation of the state) AND that the court should NOT rule directly on the question of juvenile capital punishment. The money lines from Justice Scalia's 16-year old opinion: "The punishment is either "cruel and unusual" (i.e., society has set its face against it) or it is not. The audience for these arguments, in other words, is not this Court, but the citizenry of the United States. It is they, not we, who must be persuaded. For, as we stated earlier, our job is to identify the "evolving standards of decency"; to determine, not what they should be, but what they are."

So 15-ish years ago, the Court makes a decision remotely based on the "national consensus" of that day but PRIMARILY based on the rights of a state to choose its own forms of punishment, then says that the SC should not directly weigh in on capital punishment for juveniles. Today, the Supreme Court rejects the idea that the legislatures are best suited to determine punishment limits from the earlier decision and decides that 4 states--that's less than 10 % of the union--changing their laws about capital punishment forms a "national consensus" sufficient enough to overturn a prior decision.

Hey, I'm all about the Supreme Court entertaining cases that are similar--or maybe even the exact same--as prior cases that they have ruled on--in fact, it warms my heart that the Supremes would be willing to correct a perceived wrong from their past. . .but their Roper decision sets the bar awful low for future use of the "national consensus" argument. When the Supremes site the change of heart of less than 10% of a measurable populace (in this case the state legislatures) as valid reason to invoke "national consensus" to scuttle a prior decision, they open the door on guaranteeing the obsolescence of ALL their decisions.

Of course, it doesn't quite work that way. Most of the SC's decisions that pre-empt legislation are done with such broad strokes that the "playing field" goes from somewhat balanced to entirely nonexistent. For example, take this Roper decision: by determining that all juvenile capital punishment statutes are unconstitutional, in one day the number of states with such enforceable statutes on the books went from 20 to zero. The same is true of the Roe v Wade decision: in one night, the number of states with statutes declaring abortion to be illegal in all but a few special cases went from some number (I don't know what that number is) to zero. Against this landscape, a surge of "national consensus" in the OPPOSITE direction of the Supreme's decision has almost no outlet to gain legal momentum--short of a dramatic shift in the make-up of the court, that is.

And again, I must reiterate the following: just 15 years ago a plurality of the Supremes felt that the issue of juvenile capital punishment was best left for the state legislatures. That this court would act so soon in the exact opposite direction and with tedious evidence of a SHIFT in the national consensus is bothersome, to say the least.

So back to "precedents": on top of the decision itself, I think there are 2 things established in this decision that will probably come up again at some point in time. First, there will not have to be a SIGNIFICANTLY measurable change in the "national consensus" in the future in order to use that alley as a way to overturn previous decisions. Again, when a less than 10% shift of an identifiable populace is enough to get this court to do a 180 on a prior decision, the "bar" is set so low as to be almost nonexistent. Secondly, and even more troublesome, is that State Supreme Courts now should feel free to challenge ALL precedents of prior SCOTUS decisions. The Missouri Supreme Court didn't even get admonished by the majority of the Supreme's judges for their total disregard of the Stanford precedent, a point written about with great clarity by Justice Scalia in his dissent. With this "challenge" precedent in place, I see virtually no end to the amount of legislation that will end up at the SCOTUS' feet. Kinda makes you wonder why we even pay our elected representatives. . .

Read Justice Scalia's dissent--and read all of it.