Why precedent alone may not be enough to save Roe v. Wade | Bruce Ledewitz

May 5, 2020 6:30 am

Precedent, or the doctrine of stare decisis, which formalizes the respect judges are supposed to give prior judicial decisions, has not been a reliable foundation in American constitutional history.

Bruce Ledewitz (Capital-Star file)

Some of the most important decisions from the U.S. Supreme Court have involved overturning previous cases, including, most notably Brown v. Board of Education, which overruled Plessy v. Ferguson and ended legalized public school segregation in America.

History has also shown the fragility of Supreme Court decisions. The Civil War was fought, in part, to overturn the infamous Dred Scott decision, which had denied full citizenship to African Americans. That verdict of history was ratified in the 14th Amendment citizenship clause.

The 1964 Civil Rights Act relied on Congressional authority over interstate commerce in order to reverse the result in the Civil Rights Cases of 1883.

Liberals in particular have been disdainful of precedent from the Supreme Court. President Franklin Roosevelt and his New Deal brain trust pressed for the revolution of 1937 that ended judicially imposed limits on state and federal regulation of the economy, closing what is known as the Lochner Era, and saving the Court from FDR’s proposed Court-packing plan, in the “switch in time that saved nine.”

The famed Warren Court overturned many precedents and traditional restrictions on judicial decision-making and yet remains honored among American progressives.

And the liberal justices on the Supreme Court voted in 2003, in Lawrence v. Texas, to overrule Bowers v. Hardwick, a 17-year-old precedent that had permitted the criminalization of homosexual sexual conduct.

Nevertheless, when it came to reaffirming Roe v. Wade, in 1992, in Planned Parenthood v. Casey, a plurality composed of Justices Sandra Day O’Connor, Anthony Kennedy and David Souter, strongly emphasized the importance of precedent: “to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy.”

Conservatives have always criticized the reliance on precedent as a reason for retaining Roe. Justice Antonin Scalia’s dissent in Lawrence mocked “the paean to stare decisis” in Casey, written by the same Justices who then ignored precedent and overruled Bowers.

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This was the background in the confirmation hearings on the nomination of now Justice Brett M. Kavanaugh to the Supreme Court.

The court had divided 5-4 in affirming Roe in Casey. Since that time, the ideological makeup of the Court had remained 5-4 in favor of Roe.

Retaining that balance was the real reason that U.S. Senate Majority Leader Mitch McConnell, R-Ky., went all out in keeping then-President Barack Obama from adding U.S. District Judge Merrick Garland to the Court after Justice Scalia’s death. Substituting a Kavanaugh for a Kennedy was the first time in years that balance might be changed.

Notwithstanding any personal failings of the nominee, the potential for overruling Roe is the reason the Kavanaugh nomination was so closely scrutinized.

Kavanaugh sought to allay concerns about Roe by emphasizing his respect for precedent, both in his testimony and, reportedly, in a private meeting with U.S. Sen. Susan Collins, of Maine, a key moderate Republican vote in the Senate.

That effort paid off. Collins emphasized Kavanaugh’s respect for precedent in her statement of support for his nomination: “Judge Kavanaugh is the first Supreme Court nominee to express the view that precedent is not merely a practice and tradition, but rooted in Article 3 of our Constitution itself.”

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The notion that Kavanaugh might be bound to uphold Roe based on precedent never really made any sense. Unlike decisions interpreting statutes that can always be amended by a legislature, an erroneous constitutional decision would be binding forever.

No justice on the court has pledged in principle never to overrule such a decision. And Kavanaugh did not do so in his confirmation statements.

Still, it was notable when, in a concurring opinion on April 20, in Ramos v. Louisiana, Kavanaugh wrote the precise words he might rely on in joining a later decision overturning Roe.

Ramos itself had nothing to do with abortion.

In a strange result in 1972, the court had permitted non-unanimous jury convictions at the State level, which would be unconstitutional at the federal level.

Only one justice—Lewis Powell—felt that state and federal standards could be different and his eccentric view carried the day in an unusual 4-1-4 decision in Apodaca v. Oregon. Ramos overruled Apodaca and now requires unanimous criminal jury verdicts.

In joining the decision to overrule, Kavanaugh highlighted both the unsoundness of the prior decision and the suggestion that non-unanimous verdicts had been originally adopted in order to lessen the influence of African American jurors in criminal cases.

Kavanaugh showed no hesitancy in overruling Apodaca: “Why stick by an erroneous precedent that is egregiously wrong as a matter of constitutional law, that allows convictions of some who would not be convicted under the proper constitutional rule, and that tolerates and reinforces a practice that is thoroughly racist in its origins and has continuing racially discriminatory effects?”

Except for the reference to criminal convictions, this language could easily be adapted to a decision to overrule Roe.

That suspicion is reinforced because, in a 2019 concurring opinion in an Indiana abortion case, Justice Clarence Thomas had pointedly criticized the origin of American abortion reform as “a tool of eugenics” that “could be drawn along racial lines” in reducing “unfit” populations.

Kavanaugh could be preparing a similar attack.

None of this means Roe will be overturned. Chief Justice John Roberts has shown little interest in his 15-year tenure for landmark conservative decisions. Instead, Roe could die the death of a thousand cuts through statutory restrictions, becoming irrelevant as a practical matter, while never being formally overturned.

But now we do know something we should have understood all along. When it comes to important constitutional decisions, justices are going to vote for the outcome they deem constitutionally appropriate.

Decisions deemed erroneous are not going to remain the law simply because they already exist. If a majority of the court feels that Roe was wrongly decided, precedent alone is not going to save it.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page.  Listen to his podcast, “Bends Toward Justice” here.

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne Kline Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Kline Duquesne Law School.