Cross-Talk

(Excerpt) John Q. Barrett (“JQB”) We now enter the exciting segment of the program called cross-talk. Tyler Rose Clemons (“TRC”) One of the things that this conversation has brought up for me is whom is the Court overturning precedent on behalf of? What interest? Whose interest is it that the Court is acting to vindicate when it says we got it wrong before, and it is so important that we get it right that we are willing to take this supposedly drastic remedy of overturning our own precedent? What I was thinking about immediately during Judge Livingston’s remarks was West Virginia State Board of Education v. Barnette. That decision reversed an opinion that had been written just a couple of years before, Minersville School District v. Gobitis, which squarely held that school children do not have a First Amendment right to not say the Pledge of Allegiance in schools. And, of course, West Virginia v. Barnette comes around a few years later, and Justice Jackson squarely says, well, actually, yes, they do. And here is this absolutely gorgeous ode to constitutional freedom about why they do. But that decision in West Virginia v. Barnette and Brown v. Board of Education and all of these other cases that I can think of when the Court vindicated the interests by avoiding stare decisis were on behalf of people that we traditionally think of as marginalized and disadvantaged: Black people, women, poor people, people that have been traditionally marginalized in our society. What this Court is doing is the opposite of that in lots of ways.