Abortion and the Next Justice
One of the reasons the nomination of Justice O'Connor's replacement on the Supreme Court, indeed any replacement, is the fear that the balance of votes on the issue of abortion will be tilted against Roe v. Wade. The Listless Lawyer tries to ease liberals' minds on the question; the worst case scenario is that abortion ends up back in the legislative process and the individual states would decide to legalize it or not, and most would.
But this does point to a fundamental hypocrisy on the conservative side. Remember, these are the guys constantly railing against activist judges. They, as do I, want judges who will interpret the law, not make law by decree. This is why I think Roe v. Wade was a bad decision: nothing in the constitution addresses abortion, so it should have been left to the democratic process for the people to decide. Instead the court essentially decreed that abortion was a legal right, a decree for which there is no appeal.
Be that as it may, Roe v. Wade is now the official interpretation of the constitution. I'm no lawyer, but there is a principle in law called stare decis, which is the "principal that the precedent decisions are to be followed by the courts." This principle exists
based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law.In other words, continuity of the law is desired, in general; the Constitution does not have one interpretation today, and another tomorrow. If it did, the foundations of the legal system would be undermined.
The judges who the conservatives want on the bench are those expected to go against stare decis on the question of abortion. The desire is to rewrite the law to say whatever they want it to say, exactly what they accuse the liberals of doing. This seems the very definition of judicial activism. A truly conservative, non-activist judge would restrict him- or her-self to what the law says, and today the law says abortion is a constitutional right. One's agreement with that finding is irrelevant. That is the official reading of the Constitution.
I wonder if this is why some earlier conservative appointees, e.g. O'Connor herself, have ended up disappointing those who appointed them. They personally do not hold to Roe v. Wade, but have enough respect for the law to vote according to established legal principles so they end up being more "liberal" than the right-wingers expect when they championed those judges.
posted by Doc at 8:07 AM
4 Comments:
The Supreme Court routinely violates stare decisis, as it usually doesn't consider itself bound by it's own precedent. Even so, the role of precedent is hotly debated in conservative circles. When the Court has taken a wrong turn, and decided cases in violation of the original meaning, why is precedent more important than the meaning of the constitution? Some people think it is, some think it isn't: it's really a judgment call. But do Supreme Court judges take an oath to uphold the Constitution, or to uphold the Supreme Court's previous line of cases?
Brown v. Board of Education overturned Plessy v. Ferguson (which was the "separate but equal" decision). For a while there before the New Deal, we had the Lochner line of cases, which guaranteed "economic due process" and struck down any legislation that threatened to regulate business interests. Heck, even Planned Parenthood v. Casey overturned (and narrowed) parts of the holding from Roe. Etc. While the court likes to project the illusion that it is always following an unbroken line of precedent leading back to the founding of the country, it really is just an illusion.
Further, consistently following precedent (even bad precedent) would allow partisan judges to hijack the Courts and functionally amend the Constitution without anybody else in the country to have a vote on the matter. Given how hard it is to pass an amendment, that would undermine our system of laws. So I think that judges need to be able to revisit prior cases that don't adhere to the Constitution, though I think that right needs to be used with care, for the reasons you describe.
Certainly in exceptional circumstances, courts should be free to revisit previous findings. Taking stare decis in an absolute way would indeed open the door to undermining the Constitution.
But revising an earlier ruling should be a truly exceptional situation, not something taken lightly. As the definition page I linked to says, "Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of which is roughly proportional to a number of factors, including the age of the precedent, the nature and extent of public and private reliance on it, and its consistency or inconsistency with other related rules of law." What concerns me is the ease with which conservatives want to overturn Roe v. Wade, an ease which borderns on the very activism they claim to abhor. The standard should be a little higher than, "I disagree so I will set it right."
True enough, but conservatives aren't upset at Roe just because they disagree.
Have you ever actually read the Roe decision? The right to abortion "emanated" from the "penumbras" of... God alone knows what. The justification which the Court provided in Roe has no cognizable relationship to either the text or the history of the Constitution; which is why, so far as I'm aware, literally *no one* defends the opinion on legal grounds.* It is probably the paradigmatic example of "judicial activism", whatever that turns out to mean.
* Except, perhaps, for NYU's Ronald Dworkin. But he's well known for doing and saying anything if it will help to defend the Warren Court's activism.
If that is indeed the case (and I'll take your word for it as I am not a lawyer), then I will agree that overturning Roe v. Wade is a good idea and in keeping with more conservative princples.
But it is interesting that in subsequent cases, the Court has declined to reverse itself on the case. Even Rehnquist, who dissented in the orginal has declined to overrule it. Modify and restrict it, yes. Overrule it, no.
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