Those who are expecting me to address the merits of the premise of Roe v. Wade that gives a woman a right to an abortion based on a constitutional right to privacy will be disappointed. If I were writing in 1973, before Roe v. Wade had been decided, then it would be a valid topic for discussion. However, forty-nine years later, it is not the key issue.
For years, Congress has had an abysmal approval rating with the public. According to Gallup polling, it has been nineteen years since more than 50% of the country had a favorable view of Congress. Likewise, during the entire Trump administration and since July 2021 of the Biden presidency, the president’s approval rating has been below 50%. The only branch of government that traditionally has had rating above 50% even when both the president and Congress were below 50% has been the Supreme Court. For example, between 2018-2020 during the Trump administration, the Court had a favorable rating over 50%. I expect that to radically change. The Court has no one to blame but itself.
The first hit was the leak of the proposed majority decision. Hopefully, once the leaker is found, we will find out their motives. Internal Supreme Court discussions are supposed to be secret. This serves an important purpose. The justices can be frank about how they want to rule. The justices can try to convince their colleagues to change their minds or otherwise moderate their positions. It has been reported that in some circumstances, positions have changed from the beginning of circulation of a proposed decision to the ultimate decision. Thus, for someone to leak a proposed majority decision before a final determination had been published is a blow to the Court’s reputation.
What I thought was interesting and what did not receive much notice was that the draft was from February - two months before it was leaked. I find it hard to believe that this was the latest version. The conventional wisdom was that this was leaked because someone in the system was unhappy with the opinion to overturn Roe v. Wade. By leaking the opinion, it would create a public outcry, which would force the Court to back away. I have a contrarian view. I think that after the circulation of the February 2022 proposed decision, there may have been pushback within the Court about the wisdom of making such a broad ruling. There was a fear by someone who wanted Roe to be overturned that the Court would change its initial proposed ruling and issue a narrow decision which would keep Roe v. Wade as good law. If the draft opinion was leaked, it would lock the Court into deciding to overturn Roe. To do otherwise would appear that the Court caved in to public pressure. The Court is supposed to be immune to public opinion and decide the cases solely on the law.
Another hit is to the well-established doctrine of stare decisis. This is the idea that a subsequent court of equal jurisdiction, even if it may not agree with the prior determination, will not overrule it. The reason for stare decisis is that it promotes certainty in the law and promotes respect for the Court. The law should not become like a seesaw, repeatedly changing due to the political composition of the Court. Moreover, when a Court decides to overrule a prior Court, they are saying that they’re smarter than their predecessors, and that the error was so wrong that it must be changed.
Thus, the Court should loathe to overturn a prior decision. This is especially so when the prior decision has been the law for many years. Roe was decided in 1973. Thus, it has been settled law that a woman has a constitutional right to an abortion. Furthermore, the Court should consider the effect that ruling will have. This is a landmark ruling. It has been compared by some to the Court’s ruling in Brown v. Board of Education, which overruled Plessy v. Ferguson. Plessy v. Ferguson, which was decided in 1896 with one justice dissenting, determined that separate but equal was valid. It gave judicial approval for segregation. Brown v. Board of Education, which was decided in 1954, reversed Plessy and determined that separate but equal was unconstitutional. Although this was a decision only applied to public schools, it was understood that this was the beginning of the death knell for segregation, which was rampant throughout the south for many years.
What separates Brown from this case is that in Brown, the Court ruled unanimously. There has been reporting that in Brown, originally, there were going to be some justices who were going to dissent. However, they were swayed by the majority who realized the momentous impact the decision would cause and that it was important to have a unanimous decision. In this case, it is only five justices, a bare majority, who have voted to overturn Roe.
It is almost guaranteed that if Roe is overturned, the majority decision in this case will be overturned by a subsequent Supreme Court with a more moderate composition. Any attempt by conservatives to claim stare decisis for the new decision will be met with justifiable ridicule by the Court.
For a group of individuals who come from Ivy League schools and is supposed to be the brightest and the best legal minds, their conduct in this case shows a total lack of understanding of what their actions have done to the country and the Court as an institution. The Supreme Court will not be regarded as judges who decide cases based on the law. Instead, they will be considered politicians in robes. The esteem of the Court has been damaged by the process and the ruling. The damage to the Court will take years to repair. That will be their legacy.