Planned Parenthood v. Casey Says Some Weird Stuff About Stare Decisis

I am, obviously, a fan of the result in Planned Parenthood v. Casey, at least insofar as the "result" is "we're not overturning Roe v. Wade." (And, the result is precisely that, pretty damn far; the details are relatively inconsequential.) But I'm a fan of the result because I'm a fan of the result in Roe itself. Lots of people aren't, of course, and you get the sense that Kennedy, at the very least, and probably also O'Connor are among them. They, of course, are two of the three co-authors of the plurality opinion in the case, along with Souter. And that plurality opinion is not mainly remembered for its discussion of the constitutional law of abortion, because, well, it doesn't really discuss that all that much, no doubt because a majority of those writing it didn't necessarily agree on the merits with the reasoning of Roe. So instead they talked about stare decisis. And boy do they say some weird stuff.



The way the section on stare decisis, which is what I'm reading for class, goes is as follows. They outline four factors which should guide the inquiry into whether or not to overrule a prior decision: reliance, workability, changed facts, and subsequent decisions which have undermined the doctrinal framework. They note, perhaps unpersuasively in some cases, that none of those four factors militated in favor of overturning Roe. They discussed how the landmark reversals of Lochner v. New York and Plessy v. Ferguson in West Coast Hotel Co. v. Parrish and Brown v. Board of Education were justified under their framework (again, perhaps unpersuasively; Plessy was probably the Supreme Court case upon which the most social reliance was ever placed). Each of these changes of heart, they assert, was justified by a changed factual understanding: of the economic consequences of Lochner-style "liberty of contract" on the one hand, and of the real social meaning of racial segregation on the other.

Roe v. Wade, however, at least in its central holding as opposed to the details of its trimester scheme, rested on no factual understanding which had since been weakened, and for the plurality this argued heavily against overturning it. If they did so, they could not deny that they had done so for any reason except "a present doctrinal disposition to come out differently from" the Roe Court. And this, they suggest, would run contrary to the Court's practice, which demanded something more than a mere belief that some prior decision was incorrect on its merits. Now, that's a perfectly sensible position, but I'm a little surprised by what they cited for it. They give a nice quote about how such flip-flopping would make the Court seem nakedly political and would injure the Court's reputation and legitimacy; they also point to a particular passage of another case without quotation. (Actually, the unquoted one doesn't really seem to say what they want it to say, being more addressed to the propriety of going out of one's way to overrule an earlier decision in a new case which does not squarely require that course of action.)

But the funny thing is, both of their citations are to dissents! And, uh, I'm not sure there could be a worse way of demonstrating the Court's commitment to uphold previous rulings even if a new majority believed them to be incorrect than quoting dissents. Not only are dissents emphatically not speaking for the Court; not only is beating the majority over the head with some idealized notion of stare decisis a nearly-universal rhetorical tool of dissents, used both by and against nearly every Justice ever in different cases. No, that's not the worst part. Think about it. The Court is citing opinions by two Justices to the effect that a decision of the Court was violating the very rule the Casey plurality was defending, and not merely defending on normative grounds but claiming to be the Court's actual practice. Oops. Looks like it's not such a universal practice as that.


But that's not even the weirdest part. The Court goes on to say that it is particularly important to uphold Roe because of how many people disagree with it, and how vehemently. The logic goes something like this: overruling Roe would send the signal that this Court is subject to political pressure, and that if enough people just get angry enough about one of our decisions then we'll back down, which would undermine the very reasons for having a constitutional court with judicial independence in the first place. There's a certain kind of strange logic for that. Not so when they mention the "price" paid by all those who have to enforce an unpopular decision, and especially those who participate in enforcing an unpopular decision which they themselves believe to be wrong, morally or legally, as a reason for upholding Roe. And keep in mind, these are all, all, given as reasons for upholding Roe specifically given a belief, or at least a suspicion, that it might be wrong as a matter of law; if we think it was right, we obviously need no further reasons for affirming it. But, the plurality says, we must uphold Roe, even if it was wrong, because overturning it would mean that all those who suffered in enforcing it did so for naught. This is literally the logic that kept us in Vietnam many years after just about everyone knew we shouldn't be there anymore.

And, I must say, this opinion cites my grandfather at an earlier stage, in its discussion of the Brown case (on the subject of the changed social understanding that led to the rejection of Plessy), so I feel obliged to close with another quote of his, from the very same article in fact. In this section which attempts to define Roe as a "super-precedent" specifically because of how controversial it is, the plurality of course uses Brown as its comparison. But the reason it was so important to remain steadfast in support of Brown despite such heated opposition was that it was right as a matter of law, not because failing to do so would make the Court look susceptible to political pressure or to justify the sacrifice of those who suffered enforcing it. Don't believe me? Here are the words of a man who was involved with the Brown litigation itself:

"If the cases outlawing segregation were wrongly decided, then they ought to be overruled. One can go further: if dominant professional opinion ever forms and settles on the belief that they were wrongly decided, then they will be overruled, slowly or all at once, openly or silently. The insignificant error, however palpable, can stand, because the convenience of settlement outweighs the discomfort of error. But the hugely consequential error cannot stand and does not stand."

That's the opening of his essay The Lawfulness of the Segregation Decisions, which is widely quoted as a better argument that Brown was correct as a matter of law than Earl Warren gave in his opinion for the Court. And these words, written by one of Brown's foremost defenders, run completely contrary to everything the Casey plurality says. If Roe v. Wade was wrongly decided, then it ought to be overruled. Those suffering in its enforcement should be permitted to stop enforcing it, and hence stop suffering, and states should be permitted to use their police powers as they see fit with regard to abortion. If, as I believe, that should not happen, it is only and can only be because Roe's conclusion is a correct one.