Stare Decisis

by Stephen Measure

A man sat down on his couch and picked up his remote. “Honey, it’s almost time for the game to start,” he called into the other room. Then he turned on the TV, and the title of a show appeared: Constitutional Law 101.

An announcer walked on to the screen in front of a background of puzzled faces. “Have you been confused by recent events?” the announcer asked. “When you heard that judges had declared that the Constitution required same-sex marriage, did you wonder what was being passed around in those judges’ chambers?”

A dark, smoke-filled room appeared on the screen, multiple people in black robes sitting around a small wooden table. A glass bong was seen briefly as it was passed from one person to the next. Somewhere in the room, someone was giggling.

Then the announcer was back in front of the wall of confused faces. “Have you stared and stared at the Constitution, wondering how in the world a judge could find a requirement for same-sex marriage inside those words?”

The scene shifted to a young man sitting at a desk, his wife standing behind him and looking over his shoulder.

“I’ve read it again and again!” the young man said, shaking his head in bewilderment. “But I don’t see anything about same-sex marriage in the Constitution!”

“Did you check the penumbras?” his equally confused wife asked. “What about the penumbras of the penumbras?”

On the couch, watching the TV, the man scratched his chin. “Honey, what’s a penumbra?”

“It’s like a region in partial shadow, dear,” a woman called from the other room.

“No, this is something to do with the law.”

“Oh, that kind of penumbra. That’s just a BS excuse used by judges when they’re pulling a ruling out of their —”

“The Constitution!” The announcer was walking across the screen, a giant Constitution behind him. Patriotic music began to play.

“We wrote the Constitution because we wanted to protect our liberties,” the announcer said. “We wanted freedom of speech. We wanted freedom of religion. We wanted freedom to not have troops quartered in our homes.”

An old couple appeared on the screen, standing in their front yard. The old man put his arm around his wife’s shoulders.

“There will be no troops quartered in our home!” the old man said.

The old woman nodded. “Thank you, Constitution!”

“That’s right,” the announcer said, appearing on the screen in front of the giant Constitution again. “The Constitution was written to protect those rights and more. But what has happened to it? How is it that judges are able to twist it into such strange shapes? That’s what we’re here to talk about today.”

The front door of a house appeared, the house a crisp shade of blue, the door a spotless white. The door opened, showing a happy, smiling family standing in the doorway: a young girl in pigtails, a mother wearing a red apron, and a father sporting a manly mustache.

“This family wants a cute, fluffy kitten,” the announcer said.

There was a flash and suddenly the little girl was holding a cute, fluffy kitten.

“I love my cute, fluffy kitty!” the little girl said, rubbing the kitten’s fur against her cheek.

“Meow?” the kitten said.

The announcer appeared once more, standing in front of the giant Constitution. “We wanted a Constitution that protected our basic liberties, but we can’t think of everything when we write our laws.”

The scene switched to the family again. They were standing in their house at the bottom of the stairs.

“Oh, no!” the mother exclaimed as they watched the kitten struggle to climb onto the bottom stair. “We forgot about our tall stairs!”

The little girl turned to face the audience. “We wanted a cute, fluffy kitty, but our cute, fluffy kitty can’t climb our stairs!”

“Never fear, little girl!” the announcer said. “That’s what judges are for! You didn’t think of those tall stairs when you wanted your cute, fluffy kitten, but judges can look at the intent of our laws and fit them to unexpected circumstances. Why, here’s a judge right now.”

There was a flash and suddenly a judge in black robes was standing next to the family.

“Oh, Mr. Judge, Mr. Judge,” the little girl said, grabbing hold of his hand. “Please help our cute, fluffy kitty, Mr. Judge!”

“Of course, little girl,” the judge said, patting her on the head. Then he pulled a small black bag out of his robe.

“See that, audience?” the announcer said, his voice a low whisper. “Every judge is entrusted with a bag of judicial ruling dust. Let’s watch what happens.”

The judge sprinkled some of the magical dust onto the kitten.

“Meow?”

Suddenly four furry appendages burst out of the kitten’s back; like giant spider legs, they arched up and then down onto the floor.

“Oh!” the mother said, grabbing her husband’s arm. “I didn’t expect that to happen!”

The kitten reached two furry spider legs up onto the bottom stair. Lifting itself up, it climbed onto the stair, then the next. Then it climbed back down. Then back up.

The father clapped in excitement. “Now it can climb the stairs!”

“Yes, but are you sure those are necessary?” the mother asked, pointing at the furry spider legs growing out of the kitten’s back.

The little girl picked up the kitten. “I love my cute, fluffy kitty,” the little girl said, holding it to her check. It reached one of its furry spider legs around and stoked the little girl’s other cheek. “It’s a little bit freaky,” the little girl said, pushing the furry spider leg away from her face, “but I still love it!”

“Don’t you see, audience?” the announcer said, suddenly in the room with the family. “Thanks to the judge’s magical dust, the kitten can now walk up and down the stairs. The judicial ruling dust created a precedent, and that precedent isn’t likely to go away.”

“Are you sure?” the mother asked. “Because I was thinking maybe we should move into a one-story house and then that precedent wouldn’t be needed anymore.”

“Oh, no,” the announcer said, laughing as he put his hand on the mother’s shoulder. “Now that a judge has gotten involved, your kitten is going to have freaky spider legs growing out of its back forever.”

“Do you want to pet it, Mommy?” the little girl asked, holding out the kitten.

Four furry spider legs reached for the mother. “Meow?”

The mother hid behind her husband, who looked a little nervous despite his manly mustache.

“Yes,” the announcer said, “precedent is just like furry spider legs growing out the back of your kitten that never go away. Sometimes useful. Sometimes a little bit freaky.”

“I think that’s more than a little bit freaky,” the mother said, poking her head above her husband’s shoulder. “Don’t you think if we got a one-story house—”

“But sometimes,” the announcer went on, “sometimes, our judges go sour. Power can do that to a person. Sometimes they forget their role, and sometimes they decide to take a more activist stance.”

The judge pulled a crown out of his robe and put it atop his head. He tossed his black bag of judicial ruling dust onto the ground and pulled out a red bag labeled “Judicial Activism Dust.” Then the newly crowned judge sprinkled some judicial activism dust on the kitten, and the four furry spider legs immediately shed their hair, the spider legs becoming tentacles, a tiny mouth forming on each tip.

“Aaaahh!” the little girl screamed, dropping the kitten to the floor.

“Meow?” The kitten stumbled toward the little girl, four tentacles on its back snapping their mouths as they strained to reach her.

“Aaaahh!” The little girl jumped behind her father. “What did the king judge do to my cute, fluffy kitty?”

“It’s not such a cute, fluffy kitten anymore, is it?” the announcer said, shaking his head. “But what’s worse, the activist rulings create precedents which spawn further activist rulings which create even worse precedents.”

The king judge sprinkled more judicial activism dust on the kitten, and its tentacles grew and grew. He sprinkled more dust, and four additional tentacles burst out of the kitten’s back.

“Meow?”

Eight mouths snarled at the family, tentacles twisting toward them.

“Aaaahh!” The family scattered in all directions.

The king judge skipped around the room, throwing judicial activism dust into the air. “I decree this! I decree that! I decree this! I decree that!”

And each time the magical dust hit the kitten or its tentacles, the tentacles grew thicker, longer, the mouths larger, now the size of a fist.

One of the mouths caught hold of the little girl’s pigtail.

“Mommy!” the little girl cried as the mouth yanked on her hair.

“You let go of her!” the mother said, swatting at the tentacle with her apron. Letting go of the pigtail, the tentacle mouth twisted toward the mother instead. She screamed, and tried to shoo it away with her apron, but its teeth kept snapping at her.

Then the father was there. He pushed his wife and daughter behind him. “Leave my family alone, you ugly, activism-inspired tentacle mouth!”

The mouth darted forward and seized hold of his mustache. It jerked backward, ripping half of the mustache away.

“Ow!” the father yelled, a hand to his face. “It ripped off my manly mustache!”

The announcer appeared on the screen again. “That’s right, audience,” the announcer said. “Judicial activism hates manly mustaches.”

Tentacles twisted this way and that, mouths snapping at the family, who kept running around the room, trying to escape. But there were too many tentacles, and too many mouths. The family couldn’t get away.

“You see, audience,” the announcer said. “Activist rulings beget activist rulings, and the precedent piles higher and higher until the law bears no resemblance to the law we created in the first place. Just look at this cute, fluffy kitten.”

The camera zoomed in on the kitten’s cute, fluffy face.

“Meow?” the kitten said.

The family stopped running. “Aww,” they said together as they smiled at the kitten.

“I love my cute, fluffy kitty!” the little girl said.

Then the camera zoomed back out, showing the eight giant tentacles growing out of the kitten’s back, their eight mouths growling at the family as they hovered in the air.

“Aaaahh!” the family screamed and started running again. The tentacle mouths twisted after them.

“We wanted a constitution to protect our basic liberties,” the announcer said, “just like this family wanted a cute, fluffy kitten. But look at what judicial activism has transformed it into: a mutated monster of mayhem.”

A tentacle mouth sunk its teeth into the mother’s finger. She screamed, shaking her hand desperately, but the mouth wouldn’t let go. Then the scene zoomed in for a close-up of the announcer’s face.

“Now do you understand how judges find a right for same-sex marriage in the Constitution?”

A tentacle twisted past his face, a severed finger hanging out of its mouth. Then the scene zoomed back out to show the whole room again, tentacles twisting in every direction as they chased after the frantic family.

“And what can we do about it?” the announcer asked, shaking his head at the scene. “Are we stuck with this mess forever?” He spread out his arms, gesturing at the madness all around.

“Well, I have a solution!” he said. “And here’s step one!” The announcer grabbed the king judge by the scruff of the neck, halting him mid-skip.

“I declare — oh!”

The announcer swatted the crown and bag of judicial activism dust onto the ground. Then he dragged the king judge toward the front door.

“You can’t do this!” the king judge protested, struggling against the announcer’s grip. “You can’t do this! I have life tenure! You’re supposed to be stuck with my nonsense for decades!”

But the announcer paid him no mind. He opened the door and then, giving the king judge a much-deserved kick in the rear, sent him flying out of the house.

“Now for step two,” the announcer said as he turned back inside. There was a flash and suddenly he held a machete in his hand. Grabbing a tentacle below its mouth, he raised his machete high. The mouth turned toward him, hissing and baring its teeth, but the announcer shouted in response and struck with his machete —

The man on the couch changed the channel. A woman appeared on the screen, standing in a kitchen. She set a large bowl of salad down onto the counter.

“And that’s how you make a tossed salad!”

The man on the couch changed the channel again. A goat’s face appeared, the goat staring straight at the screen, slowly chewing a mouth full of rubbish.

“Honey,” the man on the couch called into the other room, “do you know what channel the game is on?”