Former state judge: U.S. Supreme ignoring Holmes' lesson

[Judi Lynn]

Former state judge: U.S. Supreme ignoring Holmes' lesson

By MICHAEL GORMLEY
Associated Press Writer

September 12, 2005, 4:32 PM EDT

ALBANY, N.Y. -- A former Republican judge on the state's highest court argued Monday that the U.S. Supreme Court has failed to recognize "settled law" such as Roe v. Wade, and that nominees judged on their politics can destabilize the law.

Former Court of Appeals Judge Richard Simons made the comments as the U.S. Senate began confirmation hearings for John Roberts, the nominee to replace Chief Justice William Rehnquist on the U.S. Supreme Court.

In a speech to students at Albany Law School, Simons cited luminary Oliver Wendell Holmes, known as the great dissenter. Holmes would mount rigorous opposition in his minority opinions for the U.S. Supreme Court. But if the issue returned, he would dissent without elaboration.

"The issue is then settled for all judges regardless of their personal beliefs," Simons said. "The Supreme Court has apparently discarded this discipline."
(snip/...)

http://www.newsday.com/news/local/wire/newyork/ny-bc-ny--roberts-newyork0912sep12,0,7897870.story?coll=ny-region-apnewyork

[rwenos]

1. Of Couse, It's Never That Simple

One man's stare decisis is another man's Lochnerism.

If the justices hadn't been willing to set aside precedent, Plessy would still be good law and Brown v. Board of Education would never have been Thurgood Marshall's big win. The list of icon-shattering decisions is long: Baker v. Carr; Loving v. Virginia; Griswold v. Connecticut; Roe v. Wade.

What concerns me about John Roberts isn't his obvious brilliance. It's his secretiveness about big doctrines like substantive due process, the "penumbra of rights" Justice Brennan used in Griswold to find a right of privacy implied in the Bill of Rights (as extended to abortion in Roe v. Wade).

I fear a radar-jamming shower of banalities. Not direct perjury, like Clarence Thomas. Just banalities.