Repudiating Roe: the pernicious doctrine of 'stare decisis'

Last week, I wrote that the Supreme Court has agreed to hear “The Most Important Abortion Case in Thirty Years”: Dobbs v. Jackson Women’s Health Organization. Dobbs presents a head-on challenge to the validity of Roe v. Wade.

The Mississippi law at issue bans abortions later than 15 weeks into pregnancy. That flatly conflicts with Roe v. Wade, which makes a right to abortion for any reason absolute until at least 24 weeks. If Roe is right, Mississippi’s law is “unconstitutional.” And if Mississippi’s law is constitutionally permissible, Roe is not right.

In last week’s essay, I argued that everything will come down to the judicial doctrine of stare decisis, as applied to grave and seriously wrong constitutional precedents. Roe is as wrong a constitutional decision as they come. Its legal reasoning is utterly indefensible.

At least six justices now sitting on the Court clearly would agree that Roe v. Wade was egregiously wrongly decided and, further, that this is an error that matters, greatly, to our constitutional and moral order.

As promised, today I take up the question whether the doctrine of stare decisis legitimately can require, or even permit, the Court to adhere to a grievously wrong, legally insupportable precedent, simply because it is a precedent.

Public Discourse

The Argument for Overturning Roe

Here is my proposition: The doctrine of stare decisis cannot properly be understood or applied in such fashion as to permit the justices deliberately to render a decision contrary to the correct reading of the Constitution. Whenever it can be said, with sufficient confidence, that a prior decision is seriously and meaningfully wrong -- not just technically mistaken in some minor, immaterial, or inconsequential respect; not a matter of reasonable disagreement; but out-and-out wrong in a way that matters -- the justices’ ultimate duty to the Constitution obliges them to overrule the error. Roe, as discussed, is not a close case. It is a flat-out indefensible misreading of the Constitution with enormous consequences.

My discussion proceeds in four steps. First, I argue that if the doctrine of stare decisis is taken to mean that the Supreme Court should or must follow a precedent contrary to a proper understanding of the Constitution, the doctrine is not merely wrong but affirmatively unconstitutional.

Simply put: If the Constitution says one thing and a judicial precedent says something to the contrary, the judicial obligation is to give effect to the Constitution and not the faithless departure from it. That is precisely the argument for “judicial review,” set forth in The Federalist No. 78 and Marbury v. Madison. The logic that supports Marbury and judicial review forbids courts from giving effect to precedents that they are fully persuaded are contrary to the true meaning of the Constitution.

Second, I acknowledge that there is a valuable and proper role for precedent in a system of constitutional adjudication. However, those systemic values -- predictability, consistency, stability, protection of justified reliance, and judicial humility -- are all fully served by giving precedents their full persuasive force and a presumption of validity.

Precedent can inform and persuade. It can serve as a baseline. It can establish a starting point and a presumed correct answer. But it cannot properly require a knowing decision deviating from the Constitution. Precedent can advise the interpreter but cannot revise the Constitution. Stare decisis in any other form ends up undermining the rule-of-law values it purports to serve and becomes instead a tool of manipulation and arbitrary decision.

Third, I offer a “lineup card” of the justices’ views on the doctrine of stare decisis. None of the conservative-to-moderate justices who recognise that Roe is wrong holds a view of precedent that would require adherence to a decision so egregious. Though they differ in the degree to which they defer to precedent, none appears to hold a view that allows a seriously and meaningfully wrong precedent to dictate an outcome contrary to faithful understanding of the Constitution. Legitimate “reliance” interests, all agree, must consist of more than the bare expectation (or desire) that a wrong rule remain the rule, but must be true instances of vested, detrimental reliance created by the decision itself. While reliance considerations sometimes give pause, they do not trump the Constitution.

Fourth, I conclude with a warning, and a condemnation. We’ve seen a version of this movie before, and the ending did not turn out well. Planned Parenthood v. Casey -- the 1992 decision reaffirming Roe largely on the purported basis of stare decisis -- was a betrayal of principles and a betrayal of the Constitution. It compounded Roe’s error and atrocity and sought, disingenuously, deliberately to entrench it. Casey, not Roe, is the worst constitutional decision in the Supreme Court’s history. It must not be repeated.

The unconstitutionality of Stare Decisis (in its strong form)

As noted before, the doctrine of stare decisis is not required by the Constitution. The Supreme Court has consistently acknowledged this, observing many times that the doctrine is one of judicial policy only, not constitutional law.  (For the Court to depart from this view would be, ironically, unprecedented.) This has important implications.

It means that if a precedent conflicts with the Constitution in a given case, the status of the Constitution as “supreme Law of the Land” requires that the conflicting precedent give way. If by “stare decisis” one means deliberately adhering to a known, serious, misinterpretation of the Constitution, the doctrine is not merely a bad idea. It is unconstitutional.

Think about it: The Constitution says one thing. An act of a government body or agency says something else, in conflict with the Constitution. To which one should a court give effect, in a case presenting the issue? The argument of Marbury v. Madison, and before it, Federalist No. 78, is that the courts must give effect to the Constitution and not the faithless departure from it by some other actor or institution.

This follows unavoidably from the supremacy of the written Constitution, specified by Article VI of the Constitution. It is confirmed by the judges’ sworn oath, also required by Article VI, to abide by the Constitution as supreme law. (Prior judicial decisions are given no similar status under Article VI.)

Marbury’s logical deduction from the premises of the Constitution’s supremacy and judges’ sworn obligation to abide by it was that courts cannot give effect to statutes that conflict with the Constitution. The same exact reasoning applies to precedents in conflict with the Constitution. The Constitution says one thing. A judicial precedent, like Roe, says something entirely different. The justices’ obligation is to follow the Constitution.

The same conclusion follows from a proper understanding of “the judicial Power” vested in the courts by Article III of the Constitution. The judicial power is the power to decide cases in accordance with governing law, not to make the law. It is fundamental that courts have no legitimate power to alter the Constitution. Thus, wherever it can be said with sufficient confidence that a judicial precedent has departed from the Constitution, that departure falls outside the bounds of proper exercise of the judicial power.

To give such a decision binding prospective effect in future cases would be to embrace the view that the judiciary can alter the Constitution by its decisions -- a theory contrary to the premise of written constitutionalism. Such a view would also conflict with Article V, which prescribes the exclusive methods for amending the Constitution. Judicial decisions amending the Constitution violate Article III’s limitations on the judicial power and Article V’s exclusive amendment process, in addition to Article VI’s designation of the written constitution as supreme law.

There is a reinforcing technical argument why stare decisis, in a strong form of binding subsequent interpreters, is unconstitutional: it violates the due process rights of the parties in the second case. This argument was advanced 17 years ago in a law review article by a brilliant young Notre Dame law professor named Amy Coney Barrett.

Compressing greatly: A fundamental feature of the “law of judgments,” dictated by considerations of due process, is that a person cannot be bound by a judgment in a case to which he or she was not a party. Everybody gets his or her own day in court. Then-Professor Barrett argued that a rigid application of stare decisis -- using a precedent to preclude a party’s argument in his or her own, different case -- “unconstitutionally deprives a litigant of the right to a hearing on the merits of her claims.” To avoid the due process constitutional objection, Barrett wrote, “stare decisis must be flexible in fact, not just in theory.”

The proper function of precedent

That brings me to my second point: the doctrine of stare decisis, properly and sensibly understood, does not require the Court to adhere to a seriously wrong constitutional precedent. Only on an extreme, wooden understanding of stare decisis is there any conflict with the Constitution. The proper role of precedent -- a sensible understanding of the notion of “stare decisis” -- is more limited and nuanced.

There is undoubted value in a system of precedent, even in constitutional cases. A system of precedent promotes stability, predictability, and consistency of judicial decision. It protects reasonable, justified reliance -- reliance that flows from stability and predictability, but that must account for the reality that the Court frequently overrules dubious precedents.

Brown v. Board of Education, for example, rightly repudiated Plessy v. Ferguson’s “separate-but-equal” misinterpretation of the Constitution, even though it had been had become deeply embedded in practice throughout much of the nation. Finally, a system of precedent helps assure judicial humility and accountability by making judges justify their decisions in terms of what has gone before. A system of precedent serves all these functions.

But these rule-of-law values are all fully served by treating precedent as a baseline against which to evaluate subsequent departures. They do not require -- and, constitutionally, cannot require -- adherence to serious constitutional misinterpretations. And they never have. Consider Plessy again, and the over 200 other constitutional precedents the Court has overruled.

Concerns about stability, predictability, consistency, and protection of reliance interests require careful consideration of and respect for past decisions, judicial humility, and appropriate caution before overruling. But when push comes to shove -- when, after full and careful consideration, a justice is fully persuaded that a past decision has importantly departed from a proper understanding of the Constitution -- the faithful performance of judicial duty requires a judge to reach the constitutionally correct conclusion.

Finally, it should be cautioned that the actual judicial practice of the doctrine of stare decisis sometimes undermines the very values the doctrine is meant to serve. As many have observed, the Court’s invocation of stare decisis is selective, inconsistent, and seemingly tactical. The Court follows precedent... except when it doesn’t.

The multiple “factors” employed by the Court -- and employed differently by different individual justices -- often simply add a further layer to the analysis, capable of manipulation, and producing wildly inconsistent results. Far from producing stability or predictability, the result is to multiply the opportunities for arbitrary decision and strategic game-playing by clever players of the judicial game.

Predictability is lost to gamesmanship, stability is illusory, consistency is nowhere to be found, and reliance is unreliable. In the wrong hands -- or simply in too many hands -- the doctrine becomes a tactical weapon that undermines stability, consistency, predictability, and the rule of law. Far better to accord precedent a more limited role: information, persuasion, and a baseline for justification.

A brief “lineup card”

None of the six justices on the Court who doubtless recognise Roe as badly wrong possesses an extreme or unprincipled approach to stare decisis -- one that would support adhering to a seriously wrong precedent in known conflict with a faithful interpretation of the Constitution.  Here’s a quick rundown.

Justice Clarence Thomas is as close to pure as they come. For Thomas, a “demonstrably erroneous” constitutional precedent cannot properly be given effect in a subsequent case, consistent with judicial duty. To do so would violate both the Constitution’s supremacy and the judge’s oath.

Justice Neil Gorsuch likely holds a similar view. Gorsuch is willing to invoke precedent in support of his conclusion and to explain, or distinguish away, cases that do not align with his views. But he is no slave to stare decisis and has demonstrated his readiness to abandon precedents that he views as in conflict with the Constitution’s actual meaning. Gorsuch would never hide behind stare decisis to reach a result he thought badly wrong on the merits.

Neither would Justice Samuel Alito. Alito respects precedent and has invoked its rule-of-law values, in close cases, where it protects justified reliance interests -- true, vested, sunk-costs reliance generated by a decision itself, not mere reliance “in the air” -- or where departing from precedent would generate “freakish” inconsistency.

But Alito has written numerous important majority opinions overruling unpersuasive precedents. It is unthinkable that he would vote to reaffirm Roe on the basis of stare decisis in a case where the issue of Roe’s incorrectness is squarely presented.

Justice Brett Kavanaugh, too, has a subtle and sophisticated take on the doctrine of stare decisis. True, it can serve important institutional values. But it never entrenches precedents that are “grievously or egregiously wrong” and ones that have “significant negative jurisprudential or real-world consequences” -- a perfect description of Roe and Casey.

Like Alito, serious vested reliance interests would give him genuine pause. But that does not include the abstract interest in a wrong constitutional interpretation remaining the rule, going forward.

Chief Justice John Roberts is, by temperament and training, a cautious institutionalist. Before becoming a judge, he was a Supreme Court practitioner par excellence. No one is better at “handling” precedent and making fair and astute use of it. But in the end, his view of precedent -- much like Alito’s and Kavanaugh’s -- appears to be that it serves institutional values properly only where it first serves the Constitution faithfully. The process values of stability, reliance, and humility could not rightly justify knowing adherence to a seriously unconstitutional and hugely consequential decision like Roe.

Then there’s Justice Amy Coney Barrett. Barrett, whose scholarship I have long admired, has a thoughtful understanding of stare decisis: “There is nothing inevitable about the shape of stare decisis,” she explained in an important 2013 law review article. It is “a judge-made doctrine” and not at all absolute.

Precedent rightly imposes a “burden of justification” on those who would overrule past decisions. A new majority cannot simply “impose its vision with only votes” but must “defend its approach” and be “sure enough” of its answer to justify overcoming any true reliance concerns.

Precedent can inform and persuade, and it can supply a baseline against which judges must justify their subsequent decisions. But stare decisis does not require judges to adhere to constitutional errors when persuaded of the incorrectness of precedent and able to back up that conclusion with reasoned argument. It is simply unfathomable that Barrett would reaffirm Roe on the basis of stare decisis.

The three clearly pro-abortion justices -- Stephen Breyer, Sonia Sotomayor, and Elena Kagan -- can be counted on to vote to uphold Roe. They will attempt to woo defectors, invoking stare decisis tactically in an effort to achieve indirectly what they know they could not achieve on the merits of the constitutional issue itself. Kagan, the Darth Vader of stare decisis -- a master practitioner of the dark arts of manipulating the doctrine -- has been working this angle for years, with Roe clearly in mind.

There are six justices whose views on Roe, and on the doctrine of stare decisis, should lead them to overrule Roe in a case that clearly and necessarily presented the question, as Dobbs does. What could possibly go wrong?

Lucy and the football

Which brings me to a concluding word of warning.

Remember 1992? There was believed to be a solid majority of at least six, perhaps even seven, justices on the Court whose prior votes, opinions, and stated jurisprudential commitments reasonably suggested that they believed Roe v. Wade was wrongly decided and fundamentally illegitimate. (David Souter, the questionable seventh, was always a doubtful vote to overrule Roe, for reasons I have explained elsewhere -- and which infuriated me at the time of his nomination.)

The seven were Chief Justice William Rehnquist and Justices Byron White, Antonin Scalia, and the then-relatively untested Clarence Thomas, who had not previously expressed public views on Roe, plus Sandra Day O’Connor and Anthony Kennedy, both of whom had voted to uphold abortion restrictions incompatible with Roe’s framework and holdings, and both of whom had sharply criticised Roe’s reasoning. That made six; Souter was the possible stealth seventh.

Enter Planned Parenthood v. Casey. Enormous public elite pressure was brought to bear on O’Connor, Kennedy, and Souter not to overrule Roe. Instead, they should prove their “independence” from the presidents who had appointed them, Reagan and Bush, and establish their “integrity.” Guess what happened.

O’Connor caved. Kennedy flipped. Souter scurried. For whatever reason -- weakness of conviction, vanity, cowardice, politics, or a commitment to precedent and process over constitutional correctness -- three of the seven who had been considered likely to overrule Roe defected to the pro-abortion side. This created the fragmented 5-4 majority in Casey to reaffirm Roe, on the basis of a peculiar version of doctrine of stare decisis.

In an infamous controlling “Joint Opinion” by the three shifters, the Court held that Roe must be retained because precedent required it and the Court would lose face, and public support, if it corrected course and overruled Roe. Ironically, even as the three invoked stare decisis, they overruled two precedents and modified Roe’s standards and framework. The dissenters had a field day mocking the joint opinion. But alas, it was in dissent.

Casey is the worst constitutional decision of the Supreme Court of all time. As I have written in a detailed law-review article and in two essays in Public Discourse, Casey does Roe one better (or worse, actually). Roe was a stupid, clumsy, ridiculous, awful opinion that reached a constitutionally indefensible result. By the time Casey came around, a majority of the justices knew better.

The justices controlling the result knew that Roe was wrong. They knew the magnitude of its error. They knew and appreciated the grave moral stakes. And they reaffirmed Roe anyway -- knowingly, deliberately, willfully entrenching its genocidal result and seeking to entrench their entrenchment, and disparage disagreement, with some of the most pompous, windy, self-important judicial rhetoric in the Court’s history.

Casey was a calculated, intentional, venal, despicable judicial act deliberately reaching the wrong constitutional result, and then seeking to cloak that action in a plausible-sounding but pernicious manipulation of the doctrine of stare decisis. Casey combines the wrongness of Roe with the seemingly deliberate manipulativeness of Dred Scott v. Sandford, the Court’s atrocious, dishonest pro-slavery decision of 1857. It is as important for the Court to repudiate Casey as it is for the Court to repudiate Roe.

But could it happen again? Nothing is certain. The doctrine of stare decisis is a dangerous tool, malleable, and peculiarly susceptible to manipulation and abuse. It entices and deceives. And Supreme Court justices are vulnerable and, to some extent, political human beings. They are flawed men and women.

They might cave, trim, shade, temporise, politicise. They might act from fear of reproof or reprisal, from concerns over image, or from political motives. They might betray, or compromise, their own prior stated principles. They might betray the Constitution. All it takes is two, and Dobbs is lost.

If so, Dobbs will displace Casey as the worst Supreme Court decision of all time, and the justices rendering it will merit the most severe condemnation of history. But if the Court overrules Roe and Casey, the Dobbs case would rank among the most magnificent decisions in the Court’s history, taking its place alongside other great overruling decisions like Brown v. Board of Education (1954).

Either way, Dobbs v. Jackson Women’s Health Organization is likely to make history.

Republished with permission from The Public Discourse.


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