By ED WHELAN
July 6, 2021 12:46 PM
Last week I highlighted the first part of law professor Michael Stokes Paulsen’s two-part series on Dobbs v. Jackson Women’s Health Organization, the huge abortion case on the Supreme Court’s docket next Term. In that first essay, Paulsen sketches how egregiously wrong and radical the Roe/Casey regime is. In his Part II essay, Paulsen addresses “whether the doctrine of stare decisis legitimately can require, or even permit, the Court to adhere to a grievously wrong, legally insupportable precedent, simply because it is a precedent.”
Paulsen argues (compellingly, in my view) that the very logic that supports the power of judicial review—the power, that is, to decline to enforce democratic enactments that conflict with the Constitution—“forbids courts from giving effect to precedents that they are fully persuaded are contrary to the true meaning of the Constitution.” Further, the “systemic values” that the doctrine of stare decisis (qualified adherence to precedent) serves—“predictability, consistency, stability, protection of justified reliance, and judicial humility—are all fully served by giving precedents their full persuasive force and a presumption of validity.” (Paulsen’s emphasis.)
Further, Paulsen explains, whether or not “the six justices on the Court who doubtless recognize Roe as badly wrong” agree in full with him on the scope of stare decisis, none of them “possesses an extreme or unprincipled approach to stare decisis—one that would support adhering to a seriously wrong precedent in known conflict with a faithful interpretation of the Constitution.” Therefore, there ought to be six votes to overrule Roe and Casey.
Paulsen ends with a somber word of warning: Three decades ago, Roe was ripe to be overruled in Planned Parenthood v. Casey. But “[e]normous public pressure was brought to bear on [Justices] O’Connor, Kennedy, and Souter not to overrule Roe,” and they “defected to the pro-abortion side”:
Casey was a calculated, intentional, venal, despicable judicial act deliberately reaching the wrong constitutional result, and then seeking to cloak that action in a plausible-sounding but pernicious manipulation of the doctrine of stare decisis. Casey combines the wrongness of Roe with the seemingly deliberate manipulativeness of Dred Scott v. Sandford, the Court’s atrocious, dishonest pro-slavery decision of 1857. It is as important for the Court to repudiate Casey as it is for the Court to repudiate Roe.
But could it happen again? Nothing is certain. The doctrine of stare decisis is a dangerous tool, malleable, and peculiarly susceptible to manipulation and abuse. It entices and deceives. And Supreme Court justices are vulnerable and, to some extent, political human beings. They are flawed men and women. They might cave, trim, shade, temporize, politicize. They might act from fear of reproof or reprisal, from concerns over image, or from political motives. They might betray, or compromise, their own prior stated principles. They might betray the Constitution. All it takes is two, and Dobbs is lost.
If so, Dobbs will displace Casey as the worst Supreme Court decision of all time, and the justices rendering it will merit the most severe condemnation of history. But if the Court overrules Roe and Casey, the Dobbs case would rank among the most magnificent decisions in the Court’s history, taking its place alongside other great overruling decisions like Brown v. Board of Education (1954).