Justice Stevens' alarming footnote

Ed Whelan commented last week on Justice Ginsburg's dissent in John R. Sand & Gravel Co. v. United States. As Whelan rightly pointed out, Ginsburg demonstrates some antipathy to the doctrine of stare decisis. Her opinion is merely the most recent in a long line of exhibits demonstrating that liberal judges love stare decisis, except when they don't.

Justice Stevens' dissent in this otherwise-unremarkable decision bears mention for a slightly different reason. While explaining in a footnote why he, like Justice Ginsburg, believes that the Court should not wait for Congress to amend the Court of Federal Claims statute of limitations, he offers this revealing tidbit:

[T]he logic of the “special force” of stare decisis in the statutory context is that “Congress remains free to alter what we have done” … . But the amendment of an obscure statutory provision is not a high priority for a busy Congress, and we should remain mindful that enactment of legislation is by no means a cost-free enterprise.

(Citation omitted) In other words, where Congress has not acted, the Court is free to step in and act like a junior varsity Congress, re-writing legislation as it sees fit, as long as the justices are able to divine that Congress would have acted if it were not so busy or cash-strapped.

This must be a cheery thought for a liberal activist judge. Think of the possibilities! The House is dragging its feet on the Democrats' latest proposed tax hike? Can't get an immigration amnesty through the Senate? Well, you know how much Congress has on its plate. Send the bills across the street to SCOTUS. Justices Ginsburg and Stevens will happily give them the force of law without having to bother with that whole time- and expense-consuming legislative process.

The capacity of liberals to invent new justifications for subverting the democratic process never ceases to amaze.