Today, NBC published an opinion piece by attorney Michael Conway arguing that several members of the Supreme Court seem to be hinting that the court’s long commitment to Roe v Wade shouldn’t be seen as a guarantee of protection.
Those hints came in statements the Justices made in a 7-2 decision revealed Monday. The Gamble v. United States case was a decision about whether a man could be charged twice, once at the state level and once at the federal level, for the same crime without violating double jeopardy. Gamble lost the case, meaning the court decided existing precedent should remain in place which would allow for two distinct sets of charges. However, it was the discussion of the court’s treatment of precedent that caught the eye of many court watchers:
Stare decisis is a legal principle that says that the court should adhere to its prior rulings — and it was at center stage in Gamble’s appeal because he had directly asked the court to overrule a series of opinions on dual sovereignty and double jeopardy dating from 1847. The six justices joining the majority opinion first noted that stare decisis “‘promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decisions and contributes to the actual and perceived integrity of the judicial process,”‘ quoting a 1991 ruling.
But their ruling then subtly undercuts that proclamation, observing that “of course, it is also important to be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation.” While reiterating an earlier ruling that a departure from precedent “‘demands special justification,'” the court stressed that the legal rule that Gamble attacked had been upheld in numerous court decisions spanning 170 years.
Roe, in contrast, is just 46 years old…
Justice Neil Gorsuch was similarly full throated in his proclamation rejecting blind adherence to precedent: “While stare decisis warrants respect, it has never been ‘an inexorable command,’ and it is ‘at its weakest when we interpret the constitution.'” Gorsuch wrote that the quality of the opinion’s reasoning, its consistency with other rulings and legal developments since its issuance were factors as to whether a prior opinion should be followed or rejected.
But even Gorsuch’s statements seem tame compared to those found in Justice Thomas’ concurring opinion in the case. Thomas said Justices should be prepared to abandon any precedent they believed was wrongly decided. From Reuters:
“When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it,” wrote Thomas, who has long expressed a greater willingness than his colleagues to overrule precedents.
In a concurring opinion, which no other justice joined, Thomas referred to the court’s 1992 decision in Planned Parenthood v. Casey, which reaffirmed Roe and said states cannot place an undue burden on the constitutional right to an abortion recognized in the Roe decision. Thomas, a member of the court at the time, dissented from the Casey ruling.
All of this is being read as groundwork for setting aside other cases with longstanding precedent. Roe v Wade seems like one that could come before the court now that states have passed fetal heartbeat laws which all but outlaw abortion. Of course the Court’s four liberals can be counted on to be against it overturning it. That means you would need all of the remaining Justices including Chief Justice John Roberts. I’ll leave it to experts to weigh in on how Roberts might feel about stare decisis now but during his confirmation hearing he was asked about Roe and said this:
“I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts, who would be the nation’s 17th chief justice and replace the late William H. Rehnquist, said. “It is not enough — and the court has emphasized this on several occasions — it is not enough that you may think the prior decision was wrongly decided.”
That’s almost the opposite of what Justice Thomas said in his concurring decision.