NBC analyst: Come on, Roe's not in danger

I’ve had the same thought, the Handmaids Tale handwringing over Amy Coney Barrett notwithstanding. How likely would the second Supreme Court appointment by Donald Trump be to produce a reversal of Roe v Wade? NBC legal analyst Danny Cevalos explains that the delirium over the end of abortion rights is not just premature, it’s unlikely to ever be justified:


Contrary to what many commentators and Democrats are saying, Roe v. Wade is probably not “doomed.”

Abortion will likely not be illegal in 20 states within 18 months. A new justice will certainly create a new balance on the court. Retiring Justice Anthony Kennedy was the fulcrum, now Chief Justice John Roberts is the median vote. But Roe will not be overturned just because there may be a new conservative majority on the court after President Donald Trump, who is set to announce his nominee on Monday, replaces Kennedy.

Is he sure? Ruth Marcus certainly seems positive that Barrett is just waiting for her chance. Marcus cites Barrett’s previous writings to make a case for an endangered Roe, starting with Barrett’s arguments for recusal when Catholic judges are confronted with issues in death-penalty cases. The need for recusal, Barrett wrote in 1998 with co-author John Garvey, is less acute when it comes to abortion:

Repeatedly, however, they distinguish between capital punishment and abortion or euthanasia. “Criminals deserve punishment for their crimes; aged and unborn victims are innocent,” they write.

And in endorsing judicial recusal, they cite a law review article urging the same result for an anti-abortion judge who is compelled by precedent — and the status of being a lower-court judge — to uphold that right.

“The abortion case is a bit easier, we think,” they write. “Both the state and the unborn child’s mother are (at least typically) acting with gross unfairness to the unborn child, whereas the moral objection to capital punishment is not that it is unfair to the offender.”


That’s not an unfair reading of the 1998 Marquette Law Review article, which can be read in its entirety here. Marcus may have missed the point when it comes to a 2013 paper authored by Barrett for the Texas Law Review while at at Notre Dame School of Law, however:

Here is where the second strand comes in: a series of law review articles in which Barrett outlines her view that the Supreme Court should not be so tightly bound by the doctrine of adhering to precedent — stare decisis — especially on matters of constitutional law.

“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” Barrett wrote in 2013.

Actually, one of the arguments Barrett made in that paper was that stare decisis played a mediating role on ideological differences on the court that cannot be ignored. It raises a high bar on overturning precedent, although not an insurmountable one:

[A]n overlooked function of stare decisis is mediating jurisprudential disagreement. Identifying this function of stare decisis offers a different way of thinking about what the weak presumption accomplishes in this category of precedent. On the one hand, it avoids entrenching particular resolutions to methodological controversies. This reflects respect for pluralism on and off the Court, as well as realism about the likelihood that justices will lightly let go of their deeply held interpretive commitments. On the other hand, placing the burden of justification on those justices who would reverse precedent disciplines jurisprudential disagreement lest it become too disruptive. A new majority cannot impose its vision with only votes. It must defend its approach to the Constitution and be sure enough of that approach to warrant unsettling reliance interests. Uncertainty in that regard counsels retention of the status quo. …

The Court did not adopt the weak presumption in constitutional cases because it wanted to accommodate pluralism, but the presumption serves that end. Rather than extinguishing disagreement, constitutional stare decisis moderates it. The doctrine enables a reasoned conversation over time between justices-and others-who subscribe to competing methodologies of constitutional interpretation.

Because disagreement about the right way to interpret the Constitution is focused most sharply upon the Supreme Court, stare decisis does not necessarily serve this same mediating function in the constitutional cases decided by lower courts. And because fights about the content of our fundamental law are different in kind than debates about how to interpret more transitory statutes, the thesis developed here is not necessarily applicable to statutory stare decisis. But in the Supreme Court’s constitutional cases, recognition of the doctrine’s role in tempering disagreement offers insight into one of the functions it serves and one of the reasons why the Court may be unwilling to give constitutional precedent more force.


In other words, the historical balancing effect of stare decisis has its own value that contends with contemporaneous views on constitutional precedent as an overriding impulse. Barrett argues that the latter has to have a broad consensus to overcome the former. With that in mind, the paper makes an interesting argument on “superprecedents,” settled matters that “no justice would overrule” even while disagreeing on the premises of the precedent. Barrett does not include Roe among these, and indeed does not even refer to it in the context of superprecedents. That might raise some red flags among Democrats, but it’s a definitional rather than ideological point:

The force of so-called superprecedents, however, does not derive from any decision by the Court about the degree of deference they warrant. Indeed, Planned Parenthood of Southeastern Pennsylvania v. Casey 40 shows that the Court is quite incapable of transforming precedent into superprecedent by ipse dixit.141 The force of these cases derives from the people, who have taken their validity off the Court’s agenda. Litigants do not challenge them. If they did, no inferior federal court or state court would take them seriously, at least in the absence of any indicia that the broad consensus supporting a precedent was crumbling. When the status of a superprecedent is secure-e.g., the constitutionality of paper money-a lawsuit implicating its validity is unlikely to survive a motion to dismiss. And without disagreement below about the precedent, the issue is unlikely to make it onto the Court’s agenda.


However, on that point Roe might well be a superprecedent, at least as Barrett defines it. Any law outright banning abortion would not survive a motion to dismiss in district court, and not just because of Roe. Such a law would likely never rise to the Supreme Court’s attention. As Carvallos explains, it’s because Roe actually has several layers of precedent that make it all but unassailable:

It’s also significant that Roe has since been re-affirmed several times, including in 1991 in Planned Parenthood v. Casey, which applied the principles of stare decisis to Roe v. Wade, and, according to the chief justice, is itself a precedent of the court that is entitled to respect.

A judge with a mind to overrule Roe would have to confront not only Roe itself, but also its subsequent reaffirmation, including that in Casey. Of course, one criticism of Casey was that it paradoxically “overruled” Roe by substantially changing its framework, but then “affirmed” Roe … after arguably overruling it.

Another consideration is this: The court will be reluctant to take away a constitutional privacy right, even if that right was granted with dubious reasoning. If Roe were being decided for the first time by the new court, a conservative majority could easily decline to recognize a new privacy right. However, taking away an already granted, substantially relied-upon right is much harder for the court to do.

That’s no guarantee, of course, but Carvallos’ argument and Barrett’s paper are good arguments as to why Roe isn’t in danger of being wiped off the books. Casey would have to come first, in the form of challenges to the extent of which abortion falls within privacy rights. Are limitations based on viability constitutional, and do parents have a right in supervising the health and care of their children? Those questions would get a revisit long before the core issues of Roe, and it seems highly unlikely that Chief Justice John Roberts would even go as far as that. It’s one thing to reverse Abood, but another entirely to enter into the culture wars of abortion without having a reeeaaallly solid case for non-partisanship. Barrett’s paper makes that clear enough when read in context, which makes Carvallos’ argument all the stronger.


Finally, most of this came out during Barrett’s confirmation hearings last year. It’ll undoubtedly come up again if she gets the nod, because … the court’s not the only place with a preference for precedent.

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