Strengthening Constitutional Self-Government

No Left Turns

Roberts and precedent

Among the questions John Roberts will be asked in his confirmation hearings are a number regarding his respect for precedent (above all, of course, Roe v. Wade). See, for example, here and here.

I just came across a nice, and nicely problematical, statement of the regard one should have for precedent in Sandra Day O’Connor’s dissent in City of Boerne v. Flores:


Stare decisis concerns should not prevent us from revisiting our holding in Smith. " `[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.’" [citations omitted] This principle is particularly true in constitutional cases, where--as this case so plainly illustrates--correction through legislative action is practically impossible." [citation omitted] I believe that, in light of both our precedent and our Nation’s tradition of religious liberty, Smith is demonstrably wrong. Moreover, it is a recent decision. As such, it has not engendered the kind of reliance on its continued application that would militate against overruling it. Cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 855 -856 (1992).

Aside from the ad hoc defense of Roe, O’Connor puts precedent in its place. When important doctrinal or constitutional matters supervene, precedent should give way. The fact that the precedent is long-standing (think Plessy v. Ferguson, much older in 1954 than Roe is now) pales in the face of these other considerations.

I wonder if someone who uttered all but the last two sentences of that opinion could win any support in the left wing of the Democratic Party.

Discussions - 4 Comments

The Dems would certainly vote for such a person if he were a liberal, which is to say that it’s not precedent per se that the Dems care about (think Roper and Lawrence, which both overturned directly-on-point precedent that was less than 20 years old--yet the Dems love both decisions), it’s indefensible liberal-activist precedent that they’re afraid a conservative judge will vote to correct.

As my friend Peter Berkowitz argues in the current issue of Policy Review http://www.policyreview.org/aug05/berkowitz.html, the decision in Roe has produced a delicate social equilibrium that is an important contribution to the stability and fabric of the American regime, despite some important defects in legal reasoning. This is just the kind of case where, I would argue, the Supreme Court should not overrule itself. Unlike Bowers (the sodomy case) where the court discovered that its decision was at odds with the current or emerging social equilibrium not only in America but other liberal democracies.

The Bowers v. Hardwick/Lawrence v. Texas example should teach liberals not to go down the path of expecting the justices to be slaves to their own past decisions. We need an articulation of what is at stake in overruling a decision, and part of your quote displays well the kind of considerations that must guide a justice.

Rob...what do you mean "delicate social equilibrium" that is "important to the stability and fabric" of our society? With all due respect, that sounds like something someone would say who had a vested interest in something that is about to be lost. I doubt conservatives would think of Roe in this way...they are the ones who’ve had to put up with it for decades. Indeed, couldn’t you say this about any long-lasting Supreme Court decision, particularly if you support that decision?

Dear Dain,

There are many Supreme Court decisions that don’t have the role of stabilizing intense social controversy. I think that many conservatives have indeed "put up" with that ruling, because many of them are reasonable people who realize that though they would strike the balance in a different way, this is indeed a question of balance and not absolutes.

Do I support Roe? Politically, I think it is a decision infused with laudable mainstream American values, and I do not think the Court was wrong to imply a right to privacy as part of the American constitutional order. The way in which the judges crafted that right may appear at times result-oriented and injudicious. A fetus is both a human organism and also a physical appendage to another human being’s body, which makes demands on that body and can put it at risk. This is a unique and difficult situation for rights jurisprudence and any positive legal doctrine has to draw some distinctions that could be considered "conventional" or partly "arbitrary" because no abstractconstruct from rights jurisprudence can exactly say to us which aspect of the fetus’s situation, its incipient humanity or its risk-laden parisitism on the mother, should be more determinative in the balance of rights and interests. Given the difficulty, I have sympathy for the Roe court, and the distinctions it drew.

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