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Robbins: Roe v. Wade and the role of precedent

Roe is under pressure.

After a decades-long guerrilla war campaign against it, the expected blockbuster clash over Roe v. Wade, the seminal abortion rights case, is now teed up before the United States Supreme Court. Whether you’re for it or agin’ it, what this raises — besides the specter of an historic clash — is the legal precept of “stare decisis,” Latin for “to stand by a thing decided,” referred to more commonly as “precedent.”

Simplifying a bunch, law comes in two basic flavors: common law and statutory law. A statute is a law created by the legislature. Common law is, on the other hand, the body of law derived from custom and judicial case law. Another way to consider the two is to think of statutory law as set in stone by legislative mandate and common law in more evolutionary terms. Common law consists of inherited wisdom and 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.



A couple of quick asides before we march boldly on.

First — but not having a dang thing to do with law — the term “guerrilla.” No, no, the phrase has not the darndest thing to do with simians. Instead, it derives from the Spanish word “guerra,” which means “war.”



That off my chest …

No, hold on, you may be thinking; 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, no … but yes.

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 yes, what the Supremes are all about is Constitutional application and interpretation and what the 1973 decision in Roe v. Wade was based on was the Court’s interpretation of the 14th Amendment. Specifically, what the Roe Court found in a 7-2 decision was that a woman’s right to an abortion 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 to the court and a ruling on the subject has already 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 decisions of prior 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 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 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 will be dealing with in Roe, however, is horizontal precedent. Haven’t we been through all this before? Is this a subject we have already settled? If the Court is to not adhere to its own precedent in Roe, what it will have to do is carve out some distinction between Roe and the present matter with which it is faced or, what would be more unusual, to reverse itself and explain why the court in deciding Roe, and to adhering to as the law of the land this past half a century, was constitutionally wrong.

One last interesting bit to consider: This court is stacked with “conservatives” which most folks believe means the court may have a bent to overturn Roe. 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, who adheres to … well … precedent.


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