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Robbins: Roe v. Wade and overturning precedent

Ironically, it took about nine months gestation.

About nine months ago, I wrote that Roe was under pressure. Now, it seems, that with the addition of the Supreme Court’s new justices, and new conservative majority, what is about to be delivered to the nation is a tidal wave of change.

After a decades-long guerrilla war against it, the seminal abortion rights case — Roe v. Wade — appears about to be kicked to the curb. Separate from the politics of it (if, in fact, the politics can be taken out of anything in our post-modern world), this is huge. It is, in fact, bigger than Roe v. Wade itself.



While the protests have begun — both for it and against, and promise to blossom into something fierce, the larger question is whether the court can so willy-nilly tread upon what has heretofore been its own bedrock precedent. Can the court — or, maybe, better said, should the court, overturn Roe in order to feed the base, nurture the justices’ own personal proclivities, and salve the frothing politicians who seated them?

Precedent says no.



But the “no” is not absolute.

There have been occasions in the past where a legal wrong was righted. One that comes swiftly to mind is the case of Plessy v. Ferguson, the scandalous 1896 case where the Court ruled that “separate but equal” does not violate the Constitution. In that opinion, only my personal legal hero, the Great Dissenter, Justice John Marshall Harlan got it right, arguing in his impassioned dissent that the Constitution was color-blind and that the United States did not have, and could not suffer, a class system. Didn’t the Declaration of Independence itself declare that “all men are created equal”?

However, it took until 1954, in Brown v. Board of Education, for the court to finally set things straight. There, and finally then, the justices invoked the ghost and spirit of Justice Harlan, to cast aside the stain of Plessy. And set aside they did.

There have been other times that the court has righted a wrong-headed course. The question now, of course, is whether Roe is the equal of Plessy. If the leaked draft opinion is accurate, what the court’s majority seems poised to do is to undermine Roe. But is that opinion based on sound constitutional authority? Or are the conservative justices simply playing politics?

The legal precept of “stare decisis,” Latin for “to stand by a thing decided,” is more commonly referred to as “precedent.”

Simplifying things a bunch, law comes in two basic flavors: common law and statutory law. A statute is a law created by the legislature. Common law, on the other hand, is the body of law derived from custom and prior case law. Another way to consider the two is to think of statutory law as set by legislative mandate and common law in more evolutionary terms. Common law consists of the inherited wisdom of former judicial determinations. Where things can get a little fuzzy is when courts consider and interpret statutes and the court’s elucidation, in turn, becomes a precedent.

What you may be ruminating over is, isn’t there — at the least — a third tranche of law? What about constitutional law? And by the way, wasn’t Roe based on constitutional analysis and isn’t interpreting the constitution what the Supremes are all about?

Well, yes. But no.

As the Constitution is “created” law, considered expansively, it is a form of — or at least a kissin’ cousin to — statutory law. So even though it is arguably different — and unquestionably more exalted — it falls within the same tranche as statutory law. As yet, what the Supremes are all about (or, at the least what they are supposed to be all about) is constitutional application and interpretation. What the 1973 decision in Roe was based on was the court’s interpretation of the 14th Amendment. Specifically, what the Roe court held in its 7-2 decision was that a woman’s right to choose was implicit in the right to privacy protected by the 14th Amendment.

So precedent …

Courts cite to stare decisis — or precedent — when an issue has been previously brought before the court and a ruling on the subject has already been issued. When an attorney drafts a brief or otherwise presents an argument to a particular court, what she or he most generally relies upon as “authority” are the prior decisions of the courts who have reviewed and considered the subject.

The theory — long adopted in the law — is that stare decisis promotes evenhandedness, predictability, the consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. As a matter of practice, the Supreme Court will usually defer to its previous decisions even if the soundness of the decision is in doubt.

A benefit of this perceived rigidity is that a court need not continuously reevaluate the legal underpinnings of past decisions and accepted doctrines. Moreover, proponents argue that the predictability afforded by the doctrine helps clarify constitutional rights for the public.

The doctrine operates both “horizontally” and “vertically.” Horizontal stare decisis refers to a court adhering to its own precedent. A court engages in vertical stare decisis when it applies precedent from a higher court. So let’s visit that a moment.

What exactly does a “higher court” mean?

To understand it, you must first understand that courts and law are hierarchical. With no disrespect to the courts or the earnest and hard-working judges who do the heavy lifting of the law, at the bottom are the trial-level courts, both state and federal. Above them are the courts of appeal — again both state and federal — to which appeals are taken. One step further up the hierarchical ladder are the supreme courts of each state, and at the tippy of the top, the United States Supreme Court.

Vertical stare decisis or precedent has the effect of heft. A decision of the United States Supreme Court has the most substantial weight. And while the weight and influence of a court of appeals is itself considerable, the Supreme Court is the last word.

What the Supremes are dealing with in Roe is horizontal precedent. Haven’t we been through all this before? Isn’t this a subject we have already settled? Isn’t this a thing decided? If the court does not adhere to its own precedent in Roe, what it will have to do is carve out a bright line distinction between Roe and the present matter. Or, what would be more unusual, the court would have to reverse itself and explain why in deciding it, the Roe Court was constitutionally wrong.

One last interesting bit to ponder: Most folks would agree that this court is stacked with conservatives. What conservative means, though, in at least one application of the word, is one who honors and maintains the status quo, who honors and abides by tradition, and who adheres to … well … precedent.


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