What’s Next?

It has been so long ago that I can’t remember exactly when my law school professors acquainted me with the Latin phrase “stare decisis”, but it was probably in the first week of class and certainly no later than the second.  The phrase means “to stand by things decided”.  It is the legal doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.  It is the bedrock principle of the American judicial system and of all those judicial systems which are respected around the world.  It is not too much to say that it is the single most important legal principle and the one which separates nations which are governed by the rule of law rather than the rule of people.


There are a host of public policy reasons for adhering to this principle.  Those include consistency, predictability and certainty. It is obvious that people, corporations and governmental entities must be able to rely upon legal precedent in order to plan, create wealth and to carry out their personal activities and business.  When the law is “settled” on a particular issue, decisions can be made and action can be taken with assurance.  When the people believe the law cannot be counted upon or worse, is up for grabs or for sale, chaos results.


This is not to say that legal precedent should never, ever change.  There are limited circumstances which can make that necessary, but those situations are very rare, the reasons must be truly compelling and the change should usually be incremental.


I will not comment about the morality of abortion.  My opinion about the morality of abortion is unimportant.  I will say, however, that if the Supreme Court overturns Planned Parenthood v. Casey and Roe v. Wade, the prestige and authority of the Supreme Court will be immeasurably damaged. 


Based upon news stories, we are told that Justice Alito’s opinion is 93 pages, yet we are also told that the essence of his opinion is quite simply that Roe v. Wade was wrongly decided in 1973 and Planned Parenthood v. Casey in 1992 because the Constitution does not explicitly mention abortion or a right of privacy. 


Alito is one of those so-called “originalists”.  Originalists believe the Constitution must be read literally and interpreted in the context of what the Framers knew and intended at the time.  As a general rule, originalists like to cherry-pick history to justify their self-serving conclusions about the intent of people who have been dead since the early 1800s.  This judicial philosophy has become extremely popular among people who call themselves conservatives and, particularly, the Federalist Society, the conservative legal society which grooms conservative judges.  The Federalist Society has become almost synonymous with this philosophy.  Alito and all the other Republicans on the Court are members of the Federalist Society and received the endorsement of the Society.


In my judgment, this highly restrictive, static view of the Constitution is not called for by the Constitution, not in keeping with the intent of the Framers, at odds with a fair reading of the historical record, retards the development of the law, makes it impossible for the law to keep pace with the changes in knowledge, civilization and technology, and will inevitably lead to widespread discontent, frustration and then anger with the judicial system and, eventually, disrespect for the Court and the law itself.


The true genius of our Constitution is not that the Framers were blessed with the ability (some would say Divinely inspired) to foresee literally everything about the future and take care of it in a single document, but that they were, by virtue of serious compromise, able to draft a document that was complete and explicit enough without attempting to create a document intended to be the final word. 


Make no mistake about it, the forthcoming decision is personal, political and maybe religious.  No matter how they dress it up in legal jargon, it is nothing more than 5 or 6 Justices saying they think the law should be different than it has been for 50 years.  It doesn’t take 93 pages to do that.  It is much more a judicial fiat than a reasoned legal decision. 


The decision to overturn Roe v. Wade will hurt the institution of the Supreme Court.  It will also put at grave risk other rights the American people have rightfully assumed were secure.  Respect lost is very, very hard to regain. 


I’m afraid that the Supreme Court is not, as it may think or even hope, putting this issue to rest.  If anything, they will open the door to every conceivable kind of challenge to “settled” law with which the culture warriors take issue.


For more about this important topic, see the editorial of Bret Stephens in the New York Times of May 4, 2022, and the article by Adam Liptak in the New York Times of May 9, 2022.