If you are reading this, you might be disappointed to find yourself on the poop deck of The Broken Binnacle (or dung heap?) after such stellar writing from Matt and James these past weeks. Alas, I’ll try and provide some insights for you myself! John Briggs will be posting this upcoming week so get ready for some more masterful writing.
You may or may not have read my piece a few weeks ago titled, “Chance for Redemption!” discussing the upcoming decision on Dobbs vs Jackson. Since then, the historic decision has been handed down, overturning Roe v Wade and ending the federal backing of one our nation’s greatest evils. However, I’m not here to provide any commentary on the impact of the ruling, as I’m sure you have already been overwhelmed by constant journalistic takes up and down the political spectrum. Instead, I will be focusing on a smaller detail of this case, as I did in my last article “Chance for Redemption!”—John Roberts' and the doctrine of stare decisis.
The essential theme of my previous piece was exploring whether John Roberts would “flip sides”. Roberts originally sided with the ‘dissent’ at the time of the leaked decision of Dobbs v Jackson. I proposed that Roberts could potentially ‘flip,’ and side with the majority when the final decision was released.
Here’s what I said in “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.
So, what happened?
Well, Roberts did side with the majority in Dobbs vs Jackson! Even more interesting, Roberts wrote a concurrence directly addressing stare decisis and its involvement in the decision. To top this off, Alito wrote a response to Roberts’ concurrence in the decision! Let’s pull this apart.
Roberts believes that the legal doctrine of stare decisis requires strict adherence to precedent. Because of the precedents established by Roe v Wade (Roe) and Planned Parenthood v Casey (Casey), it was assumed that Roberts would claim that those precedents would need to be followed in Dobbs vs Jackson in the name of stare decisis. Does this reasoning ultimately make sense?
There are a few factors that indicate that stare decisis should or should not be applied.
Is the precedent in question grounded on sound legal doctrine?
Are there subsequent developments that erode the precedent?
Does the precedent have significant ‘reliance interests’?1
My original claim was that Justice Alito could ‘pick apart’ the arguments for invoking stare decisis (based on these factors and more) using ‘tactful writing’. Let’s see just how he did this.
Is the precedent in question grounded on sound legal doctrine?
Let’s look at what Alito says in relation to this first factor. Alito refers to this factor in the terms of calling a precedent “workable”.
Alito states in the opinion, “When Casey revisited Roe almost 20 years later, it reaffirmed Roe’s central holding, but pointedly refrained from endorsing most of its reasoning.” Alito brings to light here that not even Casey found Roe’s reasoning workable. He continues:
The controlling opinion criticized and rejected Roe’s trimester scheme, and substituted a new and obscure “undue burden” test. Casey, in short, either refused to reaffirm or rejected important aspects of Roe’s analysis, failed to remedy glaring deficiencies in Roe’s reasoning, endorsed what it termed Roe’s central holding while suggesting that a majority might not have thought it was correct, provided no new support for the abortion right other than Roe’s status as precedent, and imposed a new test with no firm grounding in constitutional text, history, or precedent
If Casey thought Roe’s reasoning wasn’t even sound, why would Dobbs vs Jackson? Alito still needs to address the precedent established by Casey. Here’s what he says about the precedent of Casey in the opinion:
Deciding whether a precedent should be overruled depends in part on whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and predictable manner. Casey’s “undue burden” test has scored poorly on the workability scale…Casey has generated a long list of Circuit conflicts. Continued adherence to Casey’s unworkable “undue burden” test would undermine, not advance, the “evenhanded, predictable, and consistent development of legal principles.”
Alito neatly dissects the workability and foundations of Casey, so he has addressed holistically whether the precedent is grounded on sound legal doctrine. He has found that neither precedent is workable, so stare decisis should not be invoked on this basis. Let’s move on to factor two.
Are there subsequent developments that erode the precedent?
Alito addresses this point by showing that the authors of Casey said that the Casey ruling should put an end to the abortion controversy. As Alito shows, it most definitely did not. Here’s what he says:
But the three Justices who authored the controlling opinion “call[ed] the contending sides of a national controversy to end their national division” by treating the Court’s decision as the final settlement of the question of the constitutional right to abortion. As has become increasingly apparent in the intervening years, Casey did not achieve that goal. Americans continue to hold passionate and widely divergent views on abortion, and state legislatures have acted accordingly. Some have recently enacted laws allowing abortion, with few restrictions, at all stages of pregnancy. Others have tightly restricted abortion beginning well before viability. And in this case, 26 States have expressly asked this Court to overrule Roe and Casey and allow the States to regulate or prohibit pre-viability abortions
The decision in Casey was supposed to put an end to a national controversy, instead the divide became wider than ever. Alito brings this forward to show that Casey as a precedent has already failed at one of its claims. Thus, the reasoning for invoking stare decisis is further eroded in this regard.
Does the precedent have significant ‘reliance interests’?
Alito argues that there are not significant reliance interests in regard to Roe and Casey. Here’s what he says:
Traditional reliance interests arise “where advance planning of great precision is most obviously a necessity.” In Casey, the controlling opinion conceded that those traditional reliance interests were not implicated because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.” For these reasons, we agree with the Casey plurality that conventional, concrete reliance interests are not present here.
Unable to find reliance in the conventional sense, the controlling opinion in Casey perceived a more intangible form of reliance. It wrote that “people [had] organized intimate relationships and made choices that define their views of themselves and their places in society . . . in reliance on the availability of abortion in the event that contraception should fail” and that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” But this Court is ill-equipped to assess “generalized assertions about the national psyche.” Casey’s notion of reliance thus finds little support in our cases, which instead emphasize very concrete reliance interests, like those that develop in “cases involving property and contract rights.”
Alito rightly points out that typical reliance interests, like property and contract rights, are not present in either Roe or Casey. Without such interests, another reason for invoking stare decisis is dismantled.
My Claim for Alito
With these factors being addressed, I think it is clear that Alito dismantled any argument for invoking stare decisis, paving the way for Roberts to flip sides. Above and beyond these factors, Alito also pointed out that abortion, outside and prior to these precedents, was not “rooted in the Nation’s history and tradition” and has not been an “essential component of ‘ordered liberty’”. I believe my claim that Alito could clear the way for Roberts to move past strict adherence to stare decisis in this case was proven true. However, I think it is also of interest to see if Roberts fully seized his chance-for-redemption through Alito’s tactful writing.
Robert’s Concurrence
What I must say here, to be frank, is naught but a sigh. Alito’s tactful discard of any reason to invoke stare decisis in this case gives Roberts the opportunity to concur with Alito and fully side with the conservatives, and even potentially signal a return to his conservative judicial ‘roots’. Did he take this opportunity? No. Yes, he does in principle concur with the majority, but he, ever needing to be the statesman, still tiptoes a middle line in his concurrence. Here’s what he says:
Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.
Roberts shows that he cannot let go of over-applying stare decisis. In the next few sentences, he admits that Roe and Casey were wrongly decided yet he still believes that they established a constitutional right.
He doubles down in his concluding paragraphs:
Whether a precedent should be overruled is a question “entirely within the discretion of the court.” Hertz v. Woodman, 218 U. S. 205, 212 (1910); see also Payne v. Tennessee, 501 U. S. 808, 828 (1991) (stare decisis is a “principle of policy”). In my respectful view, the sound exercise of that discretion should have led the Court to resolve the case on the narrower grounds set forth above, rather than overruling Roe and Casey entirely. The Court says there is no “principled basis” for this approach, ante, at 73, but in fact it is firmly grounded in basic principles of stare decisis and judicial restraint.
Even in wrapping up his argument, Roberts still places himself firmly in the middle, admitting that it’s within the courts discretion to overrule precedent, but that stare decisis should have held the court back from doing so. Contradiction on top of contradiction is clearly present. You may be frustrated with these contradictions, as am I. Luckily, as I said earlier, Alito addressed Roberts’ concurrence in the opinion.
Alito’s Response
The writing of Supreme Court documents is quite possibly the driest writing one can read. But in some rare circumstances, the writing can get spicy. This is one of those circumstances. Alito did not hold back in pointing out the inconsistencies of Roberts’ concurrence. He begins:
We now turn to the concurrence in the judgment, which reproves us for deciding whether Roe and Casey should be retained or overruled. That opinion (which for convenience we will call simply “the concurrence”) recommends a “more measured course,” which it defends based on what it claims is “a straightforward stare decisis analysis.” The concurrence would “leave for another day whether to reject any right to an abortion at all,” and would hold only that if the Constitution protects any such right, the right ends once women have had “a reasonable opportunity” to obtain an abortion. The concurrence does not specify what period of time is sufficient to provide such an opportunity, but it would hold that 15 weeks, the period allowed under Mississippi’s law, is enough—at least “absent rare circumstances.” There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party.
Alito goes straight to pointing out contradictions within the concurrence. He highlights that Roberts’ recommended “straightforward stare decisis analysis” results in a baseless approach. Moreover, Roberts’ baseless approach, to not retain or overrule, results in a solution wanted by no one on any end of the political spectrum. Alito continues to tear down Roberts’ stare decisis application with the following:
The concurrence’s most fundamental defect is its failure to offer any principled basis for its approach. The concurrence would “discar[d]” “the rule from Roe and Casey that a woman’s right to terminate her pregnancy extends up to the point that the fetus is regarded as ‘viable’ outside the womb.” But this rule was a critical component of the holdings in Roe and Casey, and stare decisis is “a doctrine of preservation, not transformation,” Citizens United v. Federal Election Comm’n, 558 U. S. 310, 384 (2010) (ROBERTS, C. J., concurring). Therefore, a new rule that discards the viability rule cannot be defended on stare decisis grounds
The main thrust here is that Roe and Casey manifested an approach without grounds, and that Roberts is doing the exact same thing, on the basis of stare decisis, despite stare decisis being a “doctrine of preservation, not transformation.” Alito continues:
For all these reasons, stare decisis cannot justify the new “reasonable opportunity” rule propounded by the concurrence. If that rule is to become the law of the land, it must stand on its own, but the concurrence makes no attempt to show that this rule represents a correct interpretation of the Constitution. The concurrence does not claim that the right to a reasonable opportunity to obtain an abortion is “‘deeply rooted in this Nation’s history and tradition’” and “‘implicit in the concept of ordered liberty.’” Nor does it propound any other theory that could show that the Constitution supports its new rule. And if the Constitution protects a woman’s right to obtain an abortion, the opinion does not explain why that right should end after the point at which all “reasonable” women will have decided whether to seek an abortion. While the concurrence is moved by a desire for judicial minimalism, “we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” Citizens United, 558 U. S., at 375 (ROBERTS, C. J., concurring). For the reasons that we have explained, the concurrence’s approach is not.
Alito puts to bed any consideration that stare decisis can provide the proper approach to this case. Moreover, Alito believes that its application does not aid in helping find the “right” decision. Roberts urge to apply ‘judicial minimalism’ through strict adherence to stare decisis does not provide any beneficial angle to this decision.
Bringing It All Together
I hope that you have found my synopsis on this small aspect of such a monumental decision insightful, and maybe—just maybe—a little captivating. Is Roberts redemption attained? In black and white, yes. He ultimately sided with the majority, and for the good. It will go down as a 6-3 decision, which means worlds compared to a 5-4 decision on a nine-justice court. Nevertheless, it would have been more satisfying to see Chief Justice Roberts let go of his strict adherence to stare decisis, especially if he is tempted to wield it once again as a political tool in the future. The bright side is that the ‘precedent’ established by Roe and Casey can never be founded upon again. God-willing, their destruction will cause waves of new-found graces to run over the United States.
“Don't allow the sad sight of human injustice to sadden your soul: someday you will see the unfailing justice of God triumph over it!” Padre Pio
Reliance interests are dependencies that have been established based on a ruling, common ones are factors like the economy or trade.