When Politics Poses As Precedent

By CHRISTOPHER MANION

This week the Court issued a procedural opinion regarding the pending appeal of Whole Woman’s Health et al. v. Jackson. The case was brought by abortion providers challenging the Texas Heartbeat Act, also known as SB 8, that Gov. Greg Abbott signed into law earlier this year.
In the same spirit that inspired their comments during the Dobbs v. Jackson Women’s Health Organization arguments on December 1, the Court’s abortion advocates warmly praised “stare decisis,” the doctrine of legal precedent.
But what is “precedent”? And whose is it?
Roe v. Wade was argued before the Court fifty years ago this week. In December 1971, abortion advocates urged the Court to abandon precedent, reflected in the deeply rooted American respect for unborn human life.
Before there was law — be it Justinian’s, Magna Charta, or the Constitution — there was “Thou Shalt Not Kill.” In 1973, pro-life laws that were fundamental law in the vast majority of states enshrined that truth. But should it stand as a “precedent”?
The appeal to stare decisis by the Court’s pro-abortion faction today rings particularly hollow. Even ardent supporters of abortion admit that advocates on all sides praise the concept when it suits them, and disregard it when it doesn’t. University of Chicago Law Professor Aziz Huq, writing this week for Politico, an established left-wing website, complains that Court conservatives can rely on precedent just like the Left. Justice Gorsuch did so in Whole Woman’s Health.
So while the Left can play with “precedent” at will, should that privilege not be accorded to the Court’s “conservatives” as well?
This casual flippancy lies at the core of the “Living Constitution,” a concept described by University of Chicago Law Professor David Strauss, a prominent advocate, as “one that evolves, changes over time, and adapts to new circumstances, without being formally amended.”
Ah yes. As if the Constitution did that “evolving” and “adapting” all by itself.
In brief, this approach means that the Constitution can say whatever you want it to. (We note that a similar spirit inspires the “Living Magisterium,” which has the support of a sizable faction within the Church . . . but we digress.)
Today, the leading advocate of the “Living Constitution” on the Court is Justice Sonia Sotomayor. We recall that, in defending her position during the arguments on Dobbs, she intentionally chose an odorous metaphor to condemn the “political” approach taken by the Court’s new majority, especially impugning those justices appointed by President Trump.
The door of Sotomayor doesn’t swing both ways.

Do The Supremes
Write The Supreme Law?

In 1907, New York Gov. Charles Evans Hughes, who later became chief justice of the Supreme Court, spoke to the Elmira Chamber of Commerce. “We are under a Constitution,” he said, “but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution.”
Of all people Franklin D. Roosevelt wasn’t so sure. In his Fireside Chat to the American public on March 1, 1937, he said, “We have . . . reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution — not over it. In our courts we want a government of laws and not of men.”
Well, to resolve his frustration, FDR threatened to pack the Court with the right kind of “men.” The Court, duly admonished, demurred — but not for long. Twenty-one years later, Chief Justice Earl Warren, writing for a unanimous Court in Cooper v. Aaron, made Hughes’s dictum “the supreme law of the land” (so much for Article VI of the Constitution). Citing Marbury v. Madison (1803), Warren’s opinion quoted Chief Justice John Marshall: “it is emphatically the province and duty of the judicial department to say what the law is.” Warren declared the principle to be “a permanent and indispensable feature of our constitutional system.”
So the Court’s power is permanent, but apparently the law isn’t.
Let’s look at one decision that every nominee for the Court has agreed with since it appeared: Brown v. Board of Education (1954). Brown overturned Plessy v. Ferguson, the 1896 ruling that permitted schools to be segregated by race. Now the Court’s ruling on Plessy was almost unanimous (7-1); there were no dissents at all on Brown v. Board (although Justice Minton complained privately that Chief Justice Warren was somewhat overbearing in pressuring the Court to make it unanimous).
Does unanimity make a decision more powerful, or, to use Justice Breyer’s term in Dobbs, a “super- precedent”? Should unanimity be required when the Court profoundly changes the law?
And what if a ruling isn’t unanimous? Does that weaken it as a “super-precedent”? Or…as a “precedent” at all?
And does a split decision make a ruling “political”?

What Is More Supreme? Life? Or Roe?

In McCollum v. Board of Education (1948), the Court ruled that “use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council violated the Establishment clause.” But it wasn’t unanimous. The vote was 7-1.
In Engel v. Vitale (1962), the Court banned public schools from sponsoring a voluntary, nondenominational prayer.
But it wasn’t unanimous. The vote was 6-1, with two justices not participating.
In Abington School District v. Schempp (1963), the Court declared that school-sponsored Bible reading was unconstitutional.
But it wasn’t unanimous. The vote was 8-1.
In Roe v. Wade (1973), the Court ruled that laws in several states that banned abortion were unconstitutional.
But it wasn’t unanimous. The vote was 7-2.
In Stone v. Graham (1980), the Court declared that posting the Ten Commandments on the wall of public school classrooms was unconstitutional.
But it wasn’t unanimous. The vote was 5-4.
In Wallace v. Jaffree (1985), the Court ruled that authorizing a one-minute period of silence in all public schools “for meditation or voluntary prayer” was unconstitutional. But it wasn’t unanimous. The vote was 6-3.
In Planned Parenthood v. Casey (1992), the Court upheld the constitutional right to have an abortion that was established in Roe v. Wade (1973).
But it wasn’t unanimous. The vote was 6-3.
In Lee v. Weisman (1992), the Court ruled that a middle school practice of inviting a clergyman to offer an opening invocation and a closing benediction at a graduation ceremony was unconstitutional.
But it wasn’t unanimous. The vote was 5-4.
In Santa Fe Independent School District v. Doe (1995), the Court ruled that a policy allowing students to elect a student say a prayer before a school football game was unconstitutional.
But it wasn’t unanimous. The vote was 6-3.
In Lawrence v. Texas (2003), the Court declared that state laws criminalizing sodomy were unconstitutional.
But it wasn’t unanimous. The vote was 6-3.
In Obergefell v. Hodges (2015), the Court declared that state laws defining marriage as the union of one man and one woman were unconstitutional.
But it wasn’t unanimous. The vote was 5-4.
Every one of the above decisions reversed longstanding precedent, rejected the views of the majority of Americans, defied the natural law, and offended the civic virtue of a moral population. Yet the Left cheered each one.
Would Justice Sotomayor find them “political”?
Let’s face it. Sotomayor exudes the spirit of Justice Ruth Bader Ginsburg, an icon of the legal Left. Ginsburg casually observed in 2009 that Roe was based not on “precedent” or “stare decisis,” but on racism, bigotry, and the false gospel of population control. That’s why in 1973 Justice Blackmun had to find the right to abortion in the “penumbra” of the Ninth Amendment to the Constitution — because it appears neither in the document nor in the Court’s precedents.
Let us put Sotomayor’s political “stench” where it belongs: in Roe v. Wade, which, to borrow a phrase from the late Mr. Justice Arthur Goldberg, was “a gross canard, cut out of whole cloth.” And it cries to Heaven for vengeance.
Roe v. Wade was radical politics masquerading as jurisprudence, and today radical politicians are desperate to save it.