But since our recent dispute in the comments over at De Novo demonstrates that you and I diverge widely on that anyway, I'll just go for a more modest response here on Roe. I'm inclined to agree with the Frankfurter analysis that stare decisis is generally a matter of policy. Thus, one policy reason in its favor is that it promotes certain important values bound up in the rule of law--stability and predictability perhaps chief among them, and creates a resistance to the parallel vices of judicial caprice, rule by whim, and so forth. On the other hand, to say that stare decisis is a matter of policy means that it should be strongest for judges where policy arguments tend to matter most--let's take easy cases like statutory interpretations where bureaucratic practices are at stake. They could be Chevron cases but not necessarily. In such cases, where a legislature can in any event cure the misinterpretation, the interests of predictability, stability, and efficiency are all served by stare decisis, without much by way of strong countervailing interest, since even fundamental errors can be corrected by legislation.
But Constitutional cases naturally pose a different problem, as the damage cannot so easily be cured when they are wrongly decided. They do so even more when they implicate fundamental rights, such as life, liberty and property (those old fashioned fundamental rights that the framers named--we could throw in speech, exercise of religion, and others). When would we ever want to stick with getting fundamental rights wrong as a matter of law because of a policy preference for sticking with the prior decision? I think the answer most people would give is never. That's the answer they would give for Plessy v. Ferguson, and they should. That's the answer they would give for Dred Scott, and they should. Whether they are to be corrected by judicial overturning or constitutional amendment is less important for the moment than that they cried out to be overturned.
Roe is a case that clearly implicates such issues. But both Roe and Casey simply beg the crucial question: acknowledging that the status of the foetus is fundamental to the cases, and acknowledging that neither science nor the text, structure, or history of the Constitution settle the issue, they punt, and declare, after all the Constitution does settle the issue against the foetus in perpetuity. Let's take Roe first:
We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
Now, those brave jurists in Casey, who wanted to save us from a jurisprudence of doubt:
Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one's beliefs, for the life or potential life that is aborted. [emphasis added]
Except of course they have arrived at an answer, and it cannot be challenged. Given the robust (though unique, as we saw in Lawrence) view of stare decisis advanced by the court in Casey, it is hard to see what would permit the overturning of Roe. But that logic is so tortured it would take days to demonstrate the many ways. One is irresistable, however. As we have discussed here before, and as is plain in any event, one invokes stare decisis when a prior decision is on shaky ground. If it were not, there would now be no bother about why to continue to follow it. So let us see this gem from Casey:
No evolution of legal principle has left Roe's doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.
Well, of course not. The whole point is that this opinion's authors needed endless verbiage to establish a stare decisis defense for Roe because it had no doctrinal footings to begin with! Further, Casey itself all but abandons everything but the holding of Roe, and so it does what it claims has not been done--leaves Roe, as a matter of legal reasoning, behind as a sort of shell of a survivor of obsolete constitutional thinking. It's delicious that the same opinion claims that another important reason for the court to hold as it holds is to maintain the Court's credibility. Work for you?
Now, if the reason we are asked to stick to such a decision is policy and not law, I say no way. The life question is the whole shootin' match, folks. It can't be dodged, yet settled in one direction, and then defended by stare decisis. As Justice Scalia put it:
The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its "balancing" is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is, of course, no way to determine that as a legal matter; it is, in fact, a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.
Stare decisis makes sense for fundamental constitutional issues like the administrative state or even desegregation because by now there is no serious public dispute about either of these. There is lots of disagreement in theory about how big the federal government ought to be, but elections are able to change that, if people were serious about it. Some even think that's what Republicans in Congress have run on for the last 35 years--but they have, without any prodding from the Supremes, expanded government apace. The country seems to have headed there, and there does not seem to be a live legislative or judicial controversy about it. In this sense, we can in retrospect recognize the economic changes of the New Deal and the Administrative State as a Constitutional Moment of the Ackermanian (?) sort. We can do so as a descriptive matter, beyond reasonable dispute I think (the kind of relatively bright line a judge can use) without endorsing the "moment" theory as a normative view of interpretation (thereby inviting judges to get out the divining rods or read chicken entrails to determine if were "having a moment" right now). Similarly, the Civil Rights era would seem to have achieved such a status--there is no serious public defense of segregation, even if there is the possibility of a serious discussion of the reasoning of Brown. (Other aspects of our civil rights debates, such as affirmative action, clearly remain in the hotly contested category.)
But notice that for Roe the circumstances are different: there has been a protracted and serious ongoing debate not just about the reasoning of Roe but about the status of the unborn child. It is why the New York Times has opposed foetal homicide laws, because at the end of the day protecting the right to "choose" only matters when what's being chosen is the end of the life of the foetus. That is, the Times is consistently worried that if people notice that we treat people who kill unborn children as murderers, that might make us think that abortion was...oh, I'd best not say it. I'll give that to the Times editorialists, they are not completely stupid. But I digress.
As I noted above, Roe is about a fundamental individual right wherein the court refused to explain decisively on scientific or constitutional grounds that it could not exist. Nevertheless, it pronounced that right perpetually trumped (Stenberg having put the final stake in the heart of the trimester system with the total triumph of the "health of the mother" standard) by the right to choose. Such a question-begging analysis about an indisputably important issue can hardly be allowed to stand on the grounds of stare decisis. Similarly, if Bowers had been wrongly decided, it would have been wrong about a serious right. And it should therefore have been overturned. Now, I think that Bowers, as a matter of Constitutional law, was correctly decided, and that the anti-sodomy laws would have fallen of their own weight (even in Texas) anyway. Thus, we may be near a Constitutional moment I think on "bedroom" regulation, one that in fact favors Lawrence, but that is nowhere near covering Roe, however much people might like to lump people's interest in saving foetal life in with their purported interest in banning contraception (thus putting Roe into the libertarian camp of Griswold). (And let me repeat, I don't think Lawrence was either necessary or proper as a matter of law, and I don't recommend the Justices look for Constitutional moments in the first instance. Rather, I'm saying that to look back at the massive societal shift that was the move to the Administrative state and not be willing to upend it now as a court is much more defensible, and for that the "constitutional moment" framework might be helpful.)
The problem with that, to repeat and wrap up, is that Roe is unlike these other decisions in that it refuses to settle a particular question of individual right persuasively (by its own lights), and thus uses the Constitution to deny a discrete and insular minority (the unborn) with a persistent group of advocates (pro-life legislators) the right to have their case heard and even won in the legislature. No respectable doctrine of stare decisis can be used to claim that such a dodge on such a fundamental issue is required by law to stand.
[Blogger's note: I reserve the right to amend this post without significant notation, as I have blurted it out freeform in about 45 minutes without breathing, and under heavy emotional disturbance after rereading the majority opinion in Casey.]
Continue Reading "Finally, a Reply to Helvidius on Stare Decisis and Roe" . . .