Primer Two: What about Roe v. Wade? Will it be overturned? Stare De-Who?

What thoughtful American isn’t speculating on the abortion question? You can probably get odds from the on-line bookies. But this begs the not-insignificant stare decisis question. The Latin phrase means “to stand by things decided,” and refers to those cases that bind the Supreme Court. One wildly popular radio pundit wrongly used this term recently to describe a lower court’s obligation to follow a higher court’s opinion. But that’s not what lawyers commonly refer to as stare decisis. Stare decisis refers to the practice, the rule, really, that the Supreme Court follows its own opinions.

Yes, believe it or not, even the highest court in the land can’t just go around making up law—or it’s not supposed to anyway. That’s the job of the legislature, remember? Again, Americans understand that because they voted for them. Conversely, when nine judges—appointed for life and accountable to no one—start making up new law, aptly described as ‘legislating from the bench,’ people are outraged. And often they should be. The way the Supreme Court “makes” law is by tossing out laws made elsewhere—some in lower courts, but most through America’s unsurpassed democratic processes. The Roe v. Wade decision, for example, threw out a Texas law making abortion illegal. Numerous other states had similar laws, all of them drawn up by legislatures, composed of hundreds of people duly elected to represent and enact the will of the hundreds of thousands of citizens in those states. What the Court did—and continues to do in cases every session—is toss out laws written and passed through a pure democratic process. But the same cannot be said for the processes of the Court. The nature of the Supreme Court—life appointments, the “cult” of privacy (how many people you know would recognize John Paul Stevens or Antonin Scalia if they walked into the room?)—removes it from the political pressures of the democratic process. And the Court’s process is not democratic. Some writers call it anti-democratic, simply because its work as often as not requires the Court to reject democratically created laws. So then, the Court, doing exactly what the founders designed it to do, is not a democratic body. Instead, it is an auditor, keeping the books on all state and federal laws, making sure the numbers add up according to the rules of that higher authority known as the Constitution.

Most people understand this process and adapt. When state laws are ruled unconstitutional, citizens generally accept the decision. Perhaps those offended by the rejection of laws drafted and passed according to the will of the people can shrug their shoulders and give the Court the benefit of the doubt, knowing it acts on behalf of a higher authority, the U.S. Constitution.

But how do people feel when the Court overturns its own prior rulings? When it considers stare decisis, but determines that correcting a decades-old wrong is more important? People feel bad. More specifically, they feel cynical, skeptical, often angry. When Roe v. Wade was created it was a bad ruling with no basis in the Constitution. Clearly abortion should have remained an issue for the states. But the activist Warren Court (a group famous for making law out of its own opinion, then burying that opinion like an artifact under balancing tests, multi-pronged considerations, and the “nexus” of various policies and doctrines, both foreign and domestic) took up the issue and decided abortion should be legal, regardless of the democratic process in the states. In other words, regardless of the voters—screw the will of the people. Let them eat cake. (Again, the Court is not democratic.)

The decision was bad for conservatives. It angered them initially and has enraged them more and more in the years since. Ironically, much of the success of the Republican Party today is due to conservative Democrats who left their own party when it became the pro-choice, one-issue party. But the decision was bad for liberals too. It became the model, the monument to an activist court. In the thirty years since Roe v. Wade, it is the contemplation of this single case that has caused Americans of every stripe to forget entirely what it once meant to have a non-political Supreme Court. Pondering Roe v. Wade, the worst opinion of the century, has left all of us ignorant about the judicial process.

So should Roe be overturned?

Yes—if all you care about is the immediate political result. Overturn the opinion and return the issue to the states. But if you would consider the long-term results, the answer may not be so simple. Ours is not the post-war nation of patriots and true believers it still was during the 1960s and even early 1970s. Thirty years after Watergate and dozens more scandals, we suffer bitter divisions. Would Americans be content with a 5-4 decision overturning Roe? More importantly, if Roe were overturned, would they respect the new law or would they see it as something that changes depending on who is in office? Isn’t that how you would see it? Isn’t that how everyone seems to be looking at the nominations of Roberts and Miers: trade O’Connor for Roberts (or Miers, or someone even more conservative) and we can overturn Roe v. Wade?

And what happens when liberals regain the majority? Will another 5-4 decision make abortion legal again?

Can the Court change the law the way you change your shoes? Do we wish to erode Americans’ respect for the law any further? To sow more seeds of cynicism about lawyers, judges, politicians, and the democratic process?

(Incidentally, these questions are entirely political and thus fall outside the traditional considerations of judges, as noted in a previous posting. Justices taking a traditional approach to their role could be expected only to analyze statutes, the text of the Constitution, and relevant case law. Should an aberrant case require overturning, such result might occur regardless of the larger affect such a ruling might have on the culture or morale of the people.)

Clearly the best solution to Roe v. Wade is a constitutional amendment, passed by a 2/3 majority of each house. Americans understand that. They can respect that. Maybe it isn’t possible yet. The only other solution to the most politicized case in the 200-year history of the Court is a unanimous ruling from the Court. That may not be possible now or ever. But even history’s worst and most controversial opinion raises the question of stare decisis—and precisely because of that controversy. For thirty-two years, the Roe decision has been hammering away at the foundations of America’s faith in the rule of law. And overturning Roe too soon or by a less than unanimous Court would only exacerbate that damage.

The play A Man for All Seasons documents the life of Sir Thomas More, England’s Lord Chancellor. A key scene includes his debate with his son-in-law, a righteous man who is frustrated by his father-in-law’s unwillingness to arrest a man everyone knows to be bad. More won’t do it without proper grounds. His son-in-law says in effect, forget the law. Tear down the law if you have to, but get the bad man. More asks to what lengths his son-in-law would go to prosecute the devil. The young man explains hotly that he would destroy the entire English law to get at the devil. More then asks where the young man would turn for protection when the devil turned on him.

Likewise, the question facing conservatives is: to what length will we go to get at a bad case—to get Roe v. Wade?

Should conservatives destroy the institution of the law and the respect of future generations by trampling stare decisis? The film’s Thomas More would answer no. And did the movie romanticize its hero? Unlikely. More is known to have once explained that were he sitting on the bench and asked to judge between his father on one side and the devil on the other, “his cause being right, the devil should have his due.”

Those who urge respect for the law and a non-political approach to judging should not be quick to advocate the brazen political move of an immediate reversal--even of the most damaging, most cynically politicized case in U.S. history. Overturning Roe v. Wade would further politicize and thereby marginalize the U.S. Supreme Court, not only in the eyes of Roe’s supporters, but also in the eyes of its enemies—and everyone in between.

In Roe v. Wade, an ostensibly a-political court was hijacked by politicians, and a legislative flag hung proudly above the bench. Reversing that case too soon might please a majority of Americans. But it would only increase Americans’ cynicism and misunderstanding about the law and judicial process. And no matter who sits on the bench or how judicious and conservative they may appear, they would still be marching under a politician’s colors.