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Sunday, February 29, 2004

Cosmic stupidity from the Houston Chronicle re Roe

In Sunday's Houston Chronicle, reporter Thomas Korosec writes:

The 5th U.S. Circuit Court of Appeals has agreed to consider written arguments as to whether the Supreme Court made a mistake in legalizing abortion.

That is just cosmic, mind-boggling stupidity. Neither the United States Court of Appeals for the Fifth Circuit, nor any other Court of Appeals for any other circuit, nor any federal district court can ever, under any circumstances, overrule the United States Supreme Court on a question of law. They lack the fundamental power. It's not just a matter of stare decisis or respect for precedent. It's a question of who's the Supreme Court, and who's not.

Anyone who managed to get a passing grade from a high school civics class should know that. For the Chronicle to say otherwise is shameful.

The Fifth Circuit's appellate jurisdiction is not discretionary. Unlike the Supreme Court, the Courts of Appeals cannot refuse to hear an appeal. If you file the right papers on time and pay the fee, any numbskull can appeal almost any decision from a federal district court to the Court of Appeals for the federal circuit within which that district court is located. The Fifth Circuit has absolutely no choice whether to "consider written arguments" on every such appeal, regardless of how frivolous the appeal may be.

The Fifth Circuit can — and it has in this case — refused to set the appeal on its oral argument calendar, meaning that the case will be decided on the basis of written briefs and the record from the district court alone.

But whether it hears oral argument or not, under no circumstances whatsoever can the Fifth Circuit overrule the U.S. Supreme Court's decision in Roe v. Wade. Even in the microscopically small chance that it decides that Norma McCorvey's petition to re-open her case was timely, the Supreme Court's prior ruling is known as the "law of the case." Regardless of whether there's been an intervening change in the relevant facts pertaining to Ms. McCorvey, neither the US District Court for the Northern Division of Texas, Dallas Division, nor a three-judge panel of the US Court of Appeals for the Fifth Circuit, nor even the entire US Court of Appeals for the Fifth Circuit sitting en banc — nor the United Nations or the International Court of Justice sitting at the Hague (thank goodness) — has the power to overrule the "law of the case" as decreed by the US Supreme Court.

It can't happen. No exceptions. Ever.

The only way that the legal precedent set by the US Supreme Court in Roe can be changed is by a majority vote of the US Supreme Court or by an amendment to the US Constitution. Period. End of paragraph. Full stop. End of story.

If this kind of enormous, glaring mistake — a mistake made even after talking to law professors at UT Law School, for pete's sake! — can't get you fired as a reporter, then I can't imagine what possibly could.

Stupid, stupid, inexcusably wrong and stupid. But some people will doubtless believe it, because after all, it was printed in a "major" newspaper.

Posted by Beldar at 01:30 AM in Current Affairs, Law (2006 & earlier) | Permalink


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(1) kevin whited made the following comment | Feb 29, 2004 3:29:19 PM | Permalink

You should email this post to the Comical's "reader representative." I suspect he's tired of hearing from me. :)

(2) Beldar made the following comment | Feb 29, 2004 9:37:37 PM | Permalink

I already sent him an email that was less equivocal and wishy-washy than this post.

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