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Opinion | Ruth Marcus: Supreme Court precedent and the looming question over Roe v. Wade
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Opinion | Ruth Marcus: Supreme Court precedent and the looming question over Roe v. Wade

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WASHINGTON — “In most matters,” Supreme Court Justice Louis Brandeis observed in 1932, “it is more important that the applicable rule of law be settled than that it be settled right.” But sticking with precedent is not, as Brandeis noted, an “inexorable command.”

So the court has developed a series of principles for applying the doctrine of stare decisis, the presumption that a ruling, even one with which a justice disagrees, should be allowed to stand. Was the decision “poorly reasoned” or “grievously wrong”? Has the decision proved unworkable in practice? Is it inconsistent with other rulings? Have the underlying facts changed? Importantly, to what degree have those affected come to rely on it?

Now, as a six-justice conservative majority considers whether and when to jettison precedents — including rulings establishing and reaffirming a constitutional right to abortion — the question arises: Are all of these tests just so much legalistic incantation and box-checking to justify a preexisting inclination?

That is, aren’t the justices, on both sides, simply junking the cases they really hate, maybe holding their noses and letting some other rulings remain on the books, and pretending they are proceeding according to an agreed-upon set of principles?

Stare decisis is the judicial equivalent of the legislative filibuster: How you feel about it depends on who is wielding it in that moment and to what end. So it’s undeniable that precedents have been jettisoned with the votes of liberal justices and to the joy of liberal analysts: Brown v. Board of Education did away with the odious doctrine of “separate but equal” that Plessy v. Ferguson set out. Lawrence v. Texas overturned Bowers v. Hardwick, which allowed states to criminalize homosexual conduct.

These were occasions for celebration, not handwringing over disrespect for precedent. Overturning precedents is far from a rarity — it’s happened more than 230 times, the first in 1810. And, as conservative legal scholar Josh Blackman points out, the liberal Warren Court breezily dispensed with numerous precedents, at times relegating discussion of this momentous step to a footnote.

Fair enough, though count me in the two-wrongs-don’t-make-a-right school of jurisprudence. If the Warren Court was doctrinally sloppy and insufficiently deferential to precedent, that doesn’t reflect how the court should comport itself now. There is a schoolyard quality to some of the judicial back-and-forth over stare decisis: You did it first! No, you do it more!

For two justices — Clarence Thomas and, based on her academic writings, Amy Coney Barrett — this exercise seems easier.

“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” Thomas wrote in a 2019 concurrence.

Barrett has indicated support for this approach, at least when it comes to constitutional interpretation, where the court has the final say. “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” she wrote in 2013.

Other justices perhaps wouldn’t toss aside rulings quite so cavalierly — in significant part because of the damage doing so would inflict on the credibility of their own institution. If the meaning of the Constitution shifts radically and frequently with new court majorities, judges look less like impartial interpreters of the law and more like just another set of ideological partisans. Why should the public accept the dictates of a politicized, zigzagging court?

All this, of course, is background to the lurking question: Should the court overturn Roe v. Wade? Will it? The court has peered over this precipice before and balked, most recently in 1992 in Planned Parenthood of Southeastern Pennsylvania v. Casey. Every indication leading up to that ruling was that Roe was doomed.

But three conservative justices — Sandra Day O’Connor, Anthony M. Kennedy and David Souter — broke away and, ticking through the traditional tests of when to overturn a precedent, decreed that the justification was lacking.

If Roe were overturned, they wrote, “the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.”

What has changed since then? Nothing — except the number of conservative justices, and what passed for conservative then looks positively mild now. Between Plessy in 1896 and Brown in 1954, the country experienced a revolution in its understanding of race. In the far shorter span between Bowers in 1986 and Lawrence in 2003, there was a similar transformation in thinking about sexual orientation.

Conservatives have a moral aversion to abortion and an intellectual aversion to finding a right to abortion in the Constitution. Both views are entitled to respect. Here I return to Casey: “the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.”

Overruling Roe, and, with it, Casey, wouldn’t promote the rule of law. It would entrench the rule of conservative lawyers.

Ruth Marcus is a columnist for The Washington Post, specializing in American politics and domestic policy. Marcus has been with the Post since 1984.



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