By Tom Liotti
It is the job of judges to keep up with the law. The easy part of doing that is following federal and state statutory changes in the law. The hard part becomes whether those laws pass Constitutional muster in the context of the legal doctrine of stare decisis, Latin for let the decision or principle of law stand. Lower courts such as mine are bound to follow those precedents even when the parties change. At the same time all courts have the power of judicial review, meaning that they must determine the constitutionality of the laws in the cases before them. This then creates a clash between the so-called originalists, such as the late Associate Justice Antonin Scalia, and those who believe that the Constitution is a living document whose literal interpretation is passé in light of the changes in the mores of society.
The mores of society and stare decisis represent what is referred to as the common law or the traditions of our society as embodied in our laws. The clash then occurs when some of our courts do not accept the changes that may have occurred within society as a whole. So there is resistance by some courts to accept separation between church and state. One judge in the south, for example, wanted to have the Ten Commandments displayed in his Court and later directed that same sex marriages not be performed. His individual beliefs then clashed with changes in the mores of society as a whole.
In 1983 I wrote an op-ed piece for The New York Times entitled “It’s Time For Service Clubs To Admit Women.” I was president of Kiwanis Club at the time when they and others such as the Lions and Rotary excluded women. The Supreme Court said they could not, but there was still resistance to the change which then occurred.
While the Bill of Rights was enacted to protect individual rights, judges must also look to stare decisis and changes in the common law, not just in their jurisdiction but elsewhere throughout the Republic. What is astonishing is that many southern courts, judges and politicians are unaccepting of changes in our mores which in some cases, they believe, differ from their religious beliefs.
It is also reality that politicians and some courts adhere to the traditions of the past because they believe that it makes them more electable. I know of some judges, for example, who ran with the “Right to Life Party” line, even though they supported abortion rights, because it gave them more votes.
The rights of minorities and women to equality under the law is now evident, yet we still have politicians that speak disparagingly of minorities and women. They endeavor to use the Constitution as a shield against the changes in our mores. Minorities and women must then organize and fight for the rights to which they are entitled. Some courts and judges need to be force fed with these principles of law or removed from the Bench for not following them.
