By HUGH HEWITT
November 11, 2021 11:01 AM – for National Review
The chief justice should follow his own stated reasoning
When the Supreme Court turns to the case of Dobbs v. Jackson Women’s Health Organization this fall, I believe that six justices will vote to overrule the combined doctrines of 1973’s Roe v. Wade — the original and sweeping intervention by the Supreme Court in the organic development of state statutory systems regulating abortion — and its 1992 “do-over” in Planned Parenthood v. Casey.
The entire cobbled-together façade of jerry-rigged, ad hoc, and incoherent abortion case law will be swept away, and the half century of strained readings and outright judicial inventions overruled. The repeated attempt by the Supreme Court to legislate at one remove from representative state and federal elected legislatures will, blessedly, end. Abortion will be legal in many states — even late-term, “partial birth” abortions — and, in other states, almost never allowed after a heartbeat is detected in the unborn baby. The Court will walk away from the now obviously failed effort to forge a national consensus by diktat where none can be had. The issue will return to the political realm to be decided, and after an initial burst of emotional reactions, the Court and the rule of law will be better for it. And the near-uniform chorus of elite media claiming a republic-ending departure from the doctrine of stare decisis will be largely ignored, the media discredited as they are on this issue by their relentless, decades-long effort to disappear half the country’s deeply felt beliefs on the subject.
Fidelity to precedent — the principle of stare decisis — is vital to the proper exercise of the judicial function. Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. For these reasons, the Supreme Court has long recognized that departures from precedent are inappropriate in the absence of a special justification. At the same time, stare decisis is neither an inexorable command nor a mechanical formula of adherence to the latest decision, especially in constitutional cases. If it were, segregation would be legal, minimum-wage laws would be unconstitutional, and the government could wiretap ordinary criminal suspects without first obtaining warrants. No justice has viewed stare decisis in such absolute terms.
When considering whether to re-examine a prior erroneous holding, the Court must balance the importance of having constitutional questions decided against the importance of having them decided rightly. As Justice Robert Jackson explained, this requires a “sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other.”
In conducting this balancing, the Court must keep in mind that stare decisis is not an end in itself. It is instead the means by which it ensures that the law will not change erratically but will develop in a principled and intelligible fashion. Its greatest purpose is to serve a constitutional ideal — the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.
If the precedent under consideration itself — in this case Roe and Casey combined — departed from the Court’s jurisprudence, returning to the intrinsically sounder doctrine established in prior cases may better achieve the aims of stare decisis than would following the more recently decided case inconsistent with the decisions that came before it. Abrogating the errant precedent, rather than reaffirming or extending it, might better preserve the law’s coherence and curtail the precedent’s disruptive effects.
Likewise, if adherence to a precedent impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decisions in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, or when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.
In the first two paragraphs above, I predicted that six justices will vote to overrule Roe and Casey in the next term, and that the Left will scream “Stare decisis!” as they rage against the result. Their anger and that specific claim isn’t going to move the Court, because paragraphs three through seven are simply plagiarized, with very minor tweaks, from Chief Justice John Roberts’s concurrence in the 2010 case of Citizens United v. FEC. My intentional, wholesale theft would get me thrown out of law school, but I use it here to hammer home the principles that should guide the chief justice and his colleagues to the necessary conclusion in Dobbs: his own. The chief justice was right in 2010. He will still be right in 2022.
To repeat, this time with the quotation marks: “When fidelity to any particular precedent does more to damage this constitutional ideal [of the rule of law] than to advance it, we must be more willing to depart from that precedent.” Time to jettison Roe and Casey. Chief Justice Roberts wrote most of the necessary portion of the opinion in 2010.
HUGH HEWITT — Mr. Hewitt has taught constitutional law since 1996 at the Fowler School of Law at Chapman University. He hosts a nationally syndicated radio show.
By RICH LOWRY
November 11, 2021 11:47 AM – for National Review
The 48 years since the Supreme Court ruled in Roe v. Wade have not been kind to its jurisprudence. Even supporters of the abortion license have conceded that its structure, its history, and its logic were shoddy workmanship. In 1992’s Planned Parenthood v. Casey, the high court itself abandoned much of Roe’s ramshackle reasoning even as it reaffirmed its principal upshot: Abortion was to be marked for special protection. The human tragedy has been grievous. Now, after a generation’s wait, the time has come for the Court to take up the question again in Dobbs v. Jackson Women’s Health Organization. Here, in this special issue, we examine the legal arguments, the policy arguments, and the social arguments for finally ending the Roe era in America.
My cmnt: click here to see the series of articles on National Review website about ending abortion now.