Chance for Redemption!
John Roberts, Stare Decisis, and Roe v Wade
I went to an all-boys high school. With over fifteen-hundred adolescent boys at all times, needless to say, there are many stories that could be told. At the Cleveland Jesuit high school, the language class of choice for about three-fourths of the student body was Latin. And for good reason. The Latin program was full of enjoyable activities: chariot races, jousting fights, and the chance for redemption. The chance for redemption was given by one of the popular Latin teachers when a student couldn’t answer a softball question. After an erroneous answer in front of a roomful of peers, a lucky student was sometimes met with the booming voice of the teacher, “CHANCE FOR REDEMPTION!” Excited classmates would pound their desk and respond in chorus, “Chance for Redemption!” The student was then given the chance to perform some athletic feat to gain the respect back of the class. A chance for redemption.
A few weeks ago, America was shocked when a draft opinion of Dobbs v Jackson’s Women Health was leaked, a case that could potentially overturn Roe v Wade. While opinions of pundits, politicians and Americans swirled around the internet, there was one major takeaway that stood out to me. Since Justice Alito had written the opinion, he must be the most senior member of the opinion. What does this mean? This means that Chief Justice John Roberts, at least at this point in the process, had sided with the dissent (Roberts is a Republican appointee and traditionally a conservative Justice). Upon learning this—I thought, “Chance for Redemption!” Look at the political picture. Everyone has resigned to the fact that without Roberts the conservatives still have a five to four majority, so if nothing were to be altered in the opinion the decision would go through. Theoretically, Roberts could side with the majority, with Alito, when the decision is made without any political blowback and seize his chance for redemption.
However, there are a few questions to be explored. Why didn’t Roberts side with the conservatives to start? Simply put, Roberts has to stay consistent with his own precedent in previous cases in which he has chosen to claim the doctrine of stare decisis as the backbone of his reasoning. Stare decisis is a legal doctrine which translates as, “to stand by things decided and is defined as “to abide by, or adhere to, decided cases.”
Could Roberts move past his own precedence and strict adherence to stare decisis to side with Alito and the majority? The answer is complicated based on previous decisions, but it is possible in a major way because of the tactful writing of Alito in the draft opinion.
Roberts’ Precedent
Why would Roberts be breaking his own precedent if he were to side with the conservatives in this decision? There are a few exemplar cases that we can turn to. In his confirmation hearing, Roberts said of stare decisis, “The principles of stare decisis look at a number of factors, settled expectations one of them, as you mentioned. Whether or not particular precedents have proven to be unworkable is another consideration on the other side; whether the doctrinal bases of a decision have been eroded by subsequent developments.” I’d like to highlight his last phrase as being critical to his ‘chance for redemption.’ “Particular precedents…the doctrinal bases of a decision have been eroded by subsequent developments,” here is where I think Alito can show that the precedents that Roberts believes he must adhere to have become unworkable.
June Medical Services LLC v. Russo was an abortion case considering a Louisiana abortion law that exactly mirrored a Texas abortion law from for years earlier. The Texas law had been struck down in Whole Women’s Health vs Hellerstedt. In that case, Roberts had sided with the other conservative justices to uphold the Texas law. However, just four years later, Roberts reversed course—this time striking down an identical law in Louisiana. So, what changed? Here’s what Roberts said.
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore, Louisiana’s law cannot stand under our precedents…I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.
On the surface it appears that Roberts is making an honest invocation of stare decisis. But Roberts admits that Whole Women’s Health was wrongly decided, meaning that it should not be adhered to, even in the name of stare decisis. Justice Thomas rightly points out Roberts’ contradiction, “Even under the Chief Justice’s approach to stare decisis, continued adherence to these precedents cannot be justified. Stare decisis is ‘not an inexorable command,’ and this Court has recently overruled a number of poorly reasoned precedents that have proved themselves to be unworkable.”
Even beyond June Medical Services, Roberts has mis-applied stare decisis on many occasions. He has shown that he believes that he needs to over-adhere to precedence. And by doing so, he has set a precedent for himself. However, if Alito can show that the previous abortion cases are unworkable, Roberts can seize this chance for redemption and can reverse his course of over adherence to stare decisis.
Alito’s Draft Decision
The draft opinion for Dobbs vs Jackson’s Women Health, a case that could potentially overturn the famous abortion decision Roe vs Wade, was leaked from the Supreme Court in early May.
In the draft opinion Alito addresses the precedents of several major abortion cases. In regard to Planned Parenthood vs Casey, Alito writes, “But the opinion concluded that stare decisis, which calls for prior decisions to be followed in most instances, required adherence to what it called Roe's “central holding"—that a State may not constitutionally protect fetal life before “viability’—even if that holding was wrong?” Here Alito addresses stare decisis in Casey, where it was invoked over a holding that was fundamentally incorrect, which means that stare decisis cannot be applied.
Later Alito states, “When vindicating a doctrinal innovation requires courts to engineer exceptions to longstanding background rules, the doctrine ‘has failed to deliver the principled and intelligible development of the Law that stare decisis purports to secure.”
A common invocation of stare decisis is that it is needed for “reliance interests,” meaning that other laws, a substantial group of people, or the economic integrity of the country is reliant on a law being upheld. Alito easily deconstructs this by pointing out that the forming of relationships based on access to abortion (as Casey states) is not the court’s jurisdiction to rule on, and, moreover, that the issue of abortion returns to the states’ legislative bodies for the people to give their voice to. Concluding the “reliance interests” points, Alito states, “For these reasons, we agree with the Casey plurality that conventional, concrete reliance interests are not present here.”
To make his points emphatically clear, Alito provides absolute clarity on the opinion’s view of stare decisis: “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Alito also brings forward a relevant point from Justice Rehnquist in Casey, “The doctrine of stare decisis is an adjunct of this duty and should be no more subject to the vagaries of public opinion than is the basic judicial task.” One could almost imagine Alito quoting this simply for the sake of Roberts having to read the draft, that is, as a chastisement of Roberts’ use of stare decisis as a political tool.
Path Forward
After his neat picking apart of using stare decisis to adhere to the precedent of Roe, Casey, June Medical Services and others, Alito has made it clear that stare decisis plays no part in this decision in Dobbs vs Jackson. By deconstructing any potential invocation of stare decisis, and by showing how every precedent has become unworkable or untenable, Alito has given Roberts a chance. A chance to show proper jurisprudence, a chance to align himself with the conservative values he showed in Whole Women’s Health, and a chance to seize his ‘chance for redemption’.
“What is taking place in America is a war against the child. And if we accept that the mother can kill her own child, how can we tell other people not to kill one another?”
- Mother Teresa, 1967, National Prayer Breakfast
@John Jakubisin, given the accusations against Roberts that claim that he is intentionally holding back this decision as long as possible, how likely do you think it is that he might seize his chance at redemption?