The Stare Decisis Scam

The once obscure law Latin phrase 'stare decisis' used to be the exclusive property of pompous judges and still more pompous first year law students.  Roughly translated it means 'to stand pat.'  Suddenly that phrase is sweeping the nation.  Thanks to the perverted politics that Roe v. Wade begat, all sides of the burning debate over our constitutional future are looking for political advantage in the simple idea that courts should not lightly overrule their own precedents. 

To the left, stare decisis means the Supreme Court's mandate that every state must tolerate unlimited abortion on demand through nine months of pregnancy should be proof against rollback.  Leftists of both parties understand stare decisis to mean that even Judges with enough decency and wit to know that the doctrine of Roe v. Wade is a moral and constitutional abomination must perpetuate that doctrine. 

This is nonsense, but the right won't challenge it directly.  For conservatives it is useful nonsense.  It is excellent camouflage for conservative judicial nominees.  Judge Samuel Alito, like John Roberts before him, is shamelessly exploiting the leftist view of stare decisis to create artificial uncertainty about how he will deal with abortion cases when he takes his seat on the Supreme Court.  That uncertainty will give Arlen Specter and a few other Republican abortion boosters the cover they need to cast a vote for Alito.  It will also permit Democrats to mollify the abortion lobby after they back away from a futile and self—destructive filibuster. 

Everybody wins.

Clarity, however, goes down for the count.  Stare decisis never has meant and never will mean that judges must stubbornly persist in error.  The law may be 'a ass,' but it isn't completely insane.   Law is part of life and has to follow the same basic rules. 

One of those rules is that mistakes typically require correction. 

If you turn left when the directions said to go right, you turn around.  If you put salt in a recipe that calls for sugar you start over.  If you usurp the legislative power to shape public morality and promote respect for human life, you apologize and return that power to the people who earned it by winning elections. 

Most judges are adult enough to understand the rules of life.  They know that their paramount obligation is to get the law right.  Senator Arlen Specter can't change that with his ridiculous visual aids designed to show how many times the Supreme Court has affirmed the 'right to choose.'  Nonetheless, he won't stop trying. 

Planned Parenthood v. Casey  is the abortion boosters' principal text on stare decisis.  Anyone who appreciates the lawyerly art of obfuscation should savor Casey.  It's a masterpiece.  Nothing it says about stare decisis is particularly objectionable.  Nothing it says on the subject is remotely relevant to the question of whether the Supreme Court should sustain Roe v. Wade either.  The Casey Court summarized the doctrine of stare decisis as follows:

'[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.'

It went on to say that if a decision proves 'unworkable' or is overtaken by events the Court should be more willing to overturn it and that where overruling a decision would work a hardship on people who have relied on it the Court should stand pat.  

Fair enough, assuming the decision at issue is at least defensible on the merits.  Most cases involve issues with respect to which reasonable people can differ.  When the Court has already reached a reasonable result, a justice can justifiably cite stare decisis as grounds for sticking with that result even if the arguments in favor of a different one seem, on balance, persuasive.   Where the Court can legitimately go either way, it makes sense to weigh the practical consequences of continuity and change. 

But when a decision is scandalously wrong, stare decisis has no role to play in considering whether that decision should be overruled.  It is terribly damaging to our constitutional order when the Supreme Court asserts that the law says something it plainly does not say.  The rule of law doesn't mean anything if the law is mere putty in judicial hands. 

There are no practical considerations that can ever justify perpetuating an open and notorious mistake.  In law as in life, the only rational thing to do with such a mistake is to correct it, sooner rather than later and immediately if possible.

If ever a case was obviously erroneous, Roe v. Wade is that case.  State legislatures are plainly entitled to determine that abortion is wrong and should be restricted.  There is no constitutional provision or principle that gives the United States Supreme Court a warrant to second guess any such determination. 

Let's assume for the sake of argument that we have a penumbral right to privacy.  That doesn't mean that we are free to commit wrongs in private.  There are any number of very private wrongs the state prohibits on moral grounds, prostitution and sodomizing goats to name a couple at random. 

As Abraham Lincoln said while debating an obscure short, pudgy guy, one 'cannot logically say that anybody has a right to do wrong."  Even our core constitutional rights such as freedom of speech and religion are susceptible to state restrictions that are justified on moral grounds.  The Constitution doesn't, for example, protect either incitement to riot or human sacrifice. 

Every serious person has to concede that abortion raises profound moral problems.  To paraphrase Lincoln, if abortion isn't wrong, nothing is.  So why isn't the states' authority to legislate on moral grounds enough to sustain any abortion regulations a state may care to adopt? Neither Roe nor Casey nor any other Supreme Court case even tries to answer this question.  

They don't because they can't.  There is no answer.  

Roe baldly asserts a right to do wrong, and that's nonsense.  The suggestion that our constitutional law is indelibly defaced with that nonsense because of stare decisis is idiotic.  There is no room for the Court to consider any negative consequences of overruling RoeRoe is a lie.  For the sake of the Court's credibility and the law's integrity the lie must be exposed and retracted. 

Correcting Roe is about much more than abortion, important as that is.  Roe transcends its holding.  It doesn't stand just for the narrow proposition that states cannot regulate abortion.  It stakes a claim on behalf of the judiciary to broad authority over public morality. 

Roe stands for a deeply pernicious approach to judging and that approach is metastasizing through constitutional law.  It is responsible for the Supreme Court's decision that states cannot constitutionally prohibit homosexual acts and for the movement to mandate gay marriage by judicial fiat.  There is no way to restore sanity and modesty to judicial decision making without jettisoning Roe

John Roberts and Samuel Alito are quite clever enough to understand all this.  They will do what they can to demolish Roe and reform constitutional law.  Their tactical decision to hide inside Arlen Specter's fog of platitudes about stare decisis isn't particularly admirable.  But it worked. 

Personally, I'll take the wins and be grateful.  With any luck the newest justices will give us decades of majority opinions loaded with the clarity that was AWOL from their confirmation hearings. 

J. Peter Mulhern is a lawyer in the Washington, DC area, and a frequent contributor.