“The Dustbin of History”: Could Roe Be Next To Be Swept Away After Ramos?

The Supreme Court’s decision requiring unanimous verdicts in state criminal trials was a historic moment for constitutional law. One of the few remaining rights under the Bill of Rights left discretionary to the states was finally “incorporated” as a constitutional requirement. Associate Justice Neil Gorsuch declared that state systems allowing non-unanimous verdicts are now “relegated to the dustbin of history.”  In his concurring opinion, Brett Kavanaugh joined in sweeping away the prior 1972 ruling in Apodaca v. Oregon. It was difficult not to conclude that the two justices had another case in mind that was argued the same year that Apodaca was published: Roe v. Wade. If Roe is the next case to be “relegated to the dustbin of history,” it would likely fall (or more likely be diminished) by the same analysis laid out by the two Trump appointees – and notably followed by key liberal justices.

The decision in Ramos v. Louisiana has as much to do with the doctrine of stare decisis as it did the Sixth Amendment.  Stare decisis (or  “Let the decision stand”) is a doctrine requiring the respect for precedent so that courts do not lightly or regularly overturn case law.  In this case, the two justices grabbled over 120 years of case law and specifically the 1972 opinion in Apodaca v. Oregon. Gorsuch stressed that “The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents.

It is a proposition with which some of us have long agreed, particularly in constitutional cases.  The maintenance of a precedent that a justice believes is constitutionally flawed would seem to contradict the oath of every justice to faithfully interpret the Constitution.

The opinions read like an awkward conversation where the participants are discussing Ramos but thinking Roe. In both of their confirmation hearings, both justices were accused of being anti-Roe and Democratic senators demanded that they assured them that they would not vote to undermine Roe on the basis of stare decisis.  Both justices repeated the standard mantra about the importance of precedence and not lightly overturning such “settled law.”

This opinion had all of the honesty and directness known only to the confirmed as opposed to the merely nominated.  Writing for the majority (with Justices Ruth Bader Ginsburg and Stephen Breyer), Gorsuch correctly noted that every member of the Court has easily shed the limitations of the doctrine when they had a fifth vote to do so.  The fact is that stare decisis is a principle that is honor primarily in dissent.  Gorsuch pointedly observed that “All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions. Indeed, in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents.” He goes on to dismiss the hold of the doctrine as “an inexorable command” and suggests that textual not traditional rationales should sustain constitutional interpretations.

For his part, Kavanaugh directly referenced the decision while also repeating the warning that “as the Court has often stated and repeats today, stare decisis is not an ‘inexorable command.’”  Kavanaugh noted that significant parts of Roe v. Wade were already overturned in Planned Parenthood v. Casey and that the Court “expressly overruled two other important abortion precedents.”  He then laid out three elements to be used in overturning long-standing cases like Apodaca, including whether the decision was “not just wrong, but grievously or egregiously wrong?”

Kavanaugh notably recognized that overturning some wrongly decided precedent would still cause “significant negative jurisprudential or real-world consequences.” That is supportive of Roe and would be in line with his comments during confirmation. However, he added that it was sometime possible to preserve a case while “narrowing the precedent.”  That is precisely what many pro-life advocates have sought to do in chipping away at Roe along its edges.  Roe is supported by an overwhelming percentage of Americans and some conservatives like Chief Justice John Roberts (and possibly Kavanaugh) could get sticker shock before buying into a outright Ramos-like decision.  Instead, they could reduce Roe to a nub with a series of exceptions for state restrictions.

However, it was Gorsuch’s opinion that should be more unnerving for pro-choice advocates.  Gorsuch noted that his colleagues had no qualms about overturning the 1972 precedent in that case.  It begs the question of why a 1973 precedent should be anymore sacrosanct in terms of stare decisis.

Roe is clearly more accepted, engrained, and important than was Apodaca.  Only two states – Louisiana and Oregon – allowed for 10-2 verdicts.  Roe is the foundation for a long line of cases. However, Roe also exposes the hypocrisy not only on the Court but Congress over stare decisis.  Democratic senators voted against both Gorsuch and Kavanaugh because of their failure to promise not to overturn or gut Roe v. Wade.

Sen. Dianne Feinstein (D., Ca.) stated that it was not enough for nominees to merely “profess loyalty to precedent” when asked about Roe. Senators insisted that, absent such an express guarantee on abortion rights, the nominees had not shown sufficient commitment to stare decisis. However, the same Democratic senators in the same hearings called for the overturning of precedent with which they disagreed from District of Columbia v. Heller (recognizing the individual right to bear arms) to Citizens United v. FEC (recognizing free speech rights in corporations in federal elections).  Senators have also called for overturning Janus v. AFSCME (in allowing nonunion members to refuse to pay union dues).  Likewise, these same senators celebrated (as did I) when the Supreme Court overturned Bowers v. Hardwick, a case upholding the criminalization of homosexual relations.

Democratic senators like Feinstein has tried to justify their demand for pre-confirmation pledges on Roe by calling it “superprecedent” because of its importance to women and core privacy interests.  Of course, gun rights advocates view Heller as “superprecedent” under the Second Amendment.  The distinction is raw and obvious.  Roe is “superprecedent” because it is right while Heller has no precedential value because it is wrong. The plain fact is that there is no such thing as “superprecedence” any more than there are “superjustices” whose votes count more on outcomes. There is just precedent and the evolving view of its validity.

In both 2016 and 2020, Democratic presidential candidate pledged to appoint justices to overturn cases like Citizen’s United, not only dispensing with stare decisis but actually promising to appoint justices who would dispense with stare decisis – on select cases – to secure confirmation.

With their opinions, Gorsuch and Kavanaugh may have created the perfect Nag’s Head light.  The North Carolina beach town derives its name from the practice of tying a light around the neck of a horse to lure ships to their doom.  Thinking the light was a ship in deep water, the ships would unwittingly sail into the shore rocks where they would be stripped of their cargo.  Ramos could prove the light that lured liberal justices to the rocks for Roe.  The fact that Ramos  was handed down when Roe was being argued only magnified its potential significance.  They succeeded in pulling liberal justices into rocky swallow water where Roe could lose all or much of its precedential hold.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified at the confirmation hearing of Justice Neil Gorsuch and teaches a course on the Constitution and the Supreme Court.

 

Here is the opinion: Ramos v. Louisiana

187 thoughts on ““The Dustbin of History”: Could Roe Be Next To Be Swept Away After Ramos?”

  1. The CPUSA comrades would go insane if that comes to pass.
    Rioting would erupt in all dem controlled utopias with Craigslist ads ahead of time for the rent-a-mob.
    Soros cash would be flown in by cargo planes for the looters and enrichers.

  2. Hard to believe anyone would want to stop the killing of innocent little babies! And if I want to inject Clorox or Lysol, don’t tell me I can’t, “It’s my body, I’ll do what want” Cartman Rules. #SatansPawns

  3. “With their opinions, Gorsuch and Kavanaugh may have created the perfect Nag’s Head light. The North Carolina beach town derives its name from the practice of tying a light around the neck of a horse to lure ships to their doom. Thinking the light was a ship in deep water, the ships would unwittingly sail into the shore rocks where they would be stripped of their cargo.”
    ************************
    Maybe good folklore but bad geography. Nags Head, like the rest of the Outer Banks, sits on a sand bar – no rocks to speak of – known as Diamond Shoals. There are reefs but they are seaward. Nags Head gets its name from any number of same-name places on the English coast. The biggest hazard these days are the yankee come-heres who think jorts and wife beaters are the height of beach fashion and that “yoos guys” has any meaning south of Maryland.

  4. I’ll give you a couple of other judicial decisions in need of overturning, stare decisis be damned, because they are, in your words, “not just wrong, but grievously or egregiously wrong: 1. Buckley v. Valeo, 2. Santa Clara v. Southern Pacific, and 3. Citizens United.

  5. I think both Griswold v. Conn. and Roe v. Wade found a constitutional right to privacy.

    I think a protected right to privacy is a reasonable extension of express rights in the Constitution.

    But what happened to it?

    In an age of license plate readers, facial recgnition, meta-data collection and FISA abuse what happened to the right of privacy?

    Will that right support a cause of action against private compamies? Against local government? Against FISA abuse?

    Maybe time to remember this right apart from abortion.

  6. “However, Roe also exposes the hypocrisy not only on the Court but Congress over stare decisis.”

    Hypocrisy? You don’t say. Depending on the jurisdiction you are in during the pandemic, gun shops are open and abortion clinics are closed. Conversely, elsewhere abortion clinics are open and gun shops are closed. One thing is uniform. The powers that be in these areas consider some Constitutional rights more important than others. And prefer politics to fulfilling their oath of office.

  7. Roe is clearly more accepted, engrained, and important than was Apodaca.

    No, it’s ‘accepted’ in your particular subcultures. Who are in the habit of pretending the rest of us don’t exist. People who fancy asking ordinary people their opinions about a 47 year old piece of case law is going to get you a valid answer have had no experience with street-level politics.

    1. Absurd, why dont you tell us once and for all what region you live in. Is it Upstate New York?

      One has to ask because your views typically reflect those of people far from major metro areas.

      1. From what Absurd has told us he is:

        in his 50s
        worked at a university sharing an office with disability or diversity programs
        lives upstate NY
        trolls here, Facebook, many dark websites using the same profile name for 15+ years
        seems to be disabled or confined home, having remarked once that “I am in no condition to do anything”
        spends an inordinate amount of time research topics to post “war & peace” type tomes
        never talks about a wife and children but does us the 1st person plural ” we”
        has only mentioned once (while I have looked) about going out for grocery run
        is Episcopalian convert but detests Pope Francis and anything Catholic hierarchy post Pope John XXIII

        all around a dysfunctional, bitter, angry, loner

        1. “all around a dysfunctional, bitter, angry, loner”

          said individual uses the name This is Absurd x (increasing #)

          what gave you that idea?

          yeah, she’s a bitter old queen

            1. Not at all, Derek. DSS has zero tolerance for anyone lacking critical-thinking skills. He’s data driven. And while he holds very strong opinions on a plethora of subjects, they are based on deeply-rooted and well-documented conservative principles. If any of you believe identity politics will gain you any leverage debating him, all you’re actually doing is exposing your own weaknesses. That’s fish in a barrel for him.

        2. “using the same profile name for 15+ years”

          I’m not quite sure what you mean about profile name but his name on this list has changed numerous times though he did not hide his identity. I still refer to him as Desperately Seeking Susan, DSS, so apparently you don’t know as much about him as you think.

          Though I don’t always agree with DSS, I find him extremely bright with a vocabulary that exceeds yours by at least 10 fold. He doesn’t hide like you and acknowledged prievious identities. I think his work place functions deal with a lot of statistics, perhaps he is an actuary or something similar. He is aware of what numbers mean and how studies are done something that seems you know little about. Since he admits to having dabbled in politics years ago the phrase “I am in no condition to do anything” could have to do with the fact that he has no political power. That is a pure guess and near meaningless just like your statement which is representative of most of what you say.

          The one thing I think you are correct about is he lives in upstate NY. What you take for bitter etc. I find to be his objections to the morality of many on this blog such as you. He seems to have a moral compass. “Dysfunctional”, one has to be a bit dysfunctional to use an anonymous alias on a blog where one can use a distinct alias and change it at will. It can demonstrate a mindset that has considerable ego concerns of the insufficient variety.

        3. No, older than 50s. Clearly a boomer; making references to people and incidents before many of us were born.

  8. “It would be very risky to take on China now.

    It will be even riskier to take on China in the future.

    At some point, righteous people have to stand up.”

    – Newt Gingrich, April 23, 2020

    1. Karl Marx, Joseph Stalin, Adolf Hitler, Chairman Mao, Kim Jong Un, Fidel Castro, “Crazy Abe” Lincoln et al. similarly had no affinity for freedom of speech.

      Do carry on.

      1. “no affinity for freedom of speech” Says George, getting it wrong.

        My comment was about the quality of the “speech” found here. I have no interest in stifling speech.

        “Do carry on.”

          1. FishWings says:April 23, 2020 at 7:17 PM

            “They are all for free speech, their speech, and only their side of speech.”

            Oh, so true.

            Again:

            “They are all for free speech, their speech, and only their side of speech.” -FishWings

          2. FishWings, your moniker says it all, don’t you think?

            You have been afforded the opportunity for free speech.

            You have propagated free lies.

            Where’s the value in that?

            Everything you say is contradicted by the clear and obvious meaning and intent, the “manifest tenor,” of the Constitution

            and Bill of Rights.

            You espouse and advocate the principles of communism with facility.

            That is anti-Constitutional and anti-American.

            You are a communist, unable to grasp the concept and fundamental law of American freedom.

            Now that’s fishy.

        1. You exhibited your disdain for and your desire to dispose of the free speech of others, removing it from the public arena and

          placing it in the dust bin.

          The point of debate is to counter the posited thesis in compelling fashion, which you are obviously incapable of.

          Prevarication is not conclusive or, otherwise, effective refutation, but a concession of victory to your opponent.

          Thank you so much.

          Again, do carry on by all means.

            1. “You’re thick as a brick, George.”

              Anonymous the Stupid acting in a Stupid fashion as usual. Take note Anonymous the Stupid has the intellect of an amoeba so it reacts but can’t explain its reaction.

  9. Given an American fertility rate in a “death spiral,” abortion at a rate of 62 million since Roe, the population being imported and communists “fundamentally transforming the United States,” is there any reason for Americans to calculate or speculate on a rapidly dissolving “future?” Is there a nation in history which killed its babies, its future?

    Who does that? Oh, yeah.

    Women.

    1. That’s a very short-sighted view of things, George. There was a time, so my grandparents tell me, that a working man could support a wife and five kids in middle-class comfort. That was generations ago, before the politicians opened the floodgates and tripled the U.S. population, causing sky-rocketing housing prices, as well as increased competition for jobs. As a consequence, younger adults need a profession and two spouses working to afford a middle-class home. And only one or two children. Factory and industrial jobs have been largely outsourced to China and Mexico, meaning what for the average male? Either a low-paying service job or extended post-secondary education and crippling college debt well into adulthood. Women have to work as well and end up with student loans they may not be able to pay off until they’re 40. The massive increase in immigration hasn’t benefited anyone except big business looking to push down wages. But it has permanently changed the American demographic. But restricting abortion is not going to change that. Black women are 3% of the U.S. population but have 40% of abortions. If you’re yearning for the days of lots of white children, you’ll have to get your Congressional representatives to change immigration law to favor immigrants from Ireland or Poland or some other white Catholic country. Good luck with that. The Democrats only care about minorities.

        1. Bring ‘em on over! I’m fine with Russians…white and Christian. We don’t need to import Muslims, or anyone else that detests everything this country was founded on.

      1. Lincoln grabbed the bull by the horns to implement the most fundamental of communist principles, the elimination of classes in society. It will take another group of revolutionaries to reestablish constitutional America.

        American wealth and its economy were redistributed globally – globalization. Have you heard of it. Corporations make profits overseas. That does Americans no good.

        The economy must be repatriated along with American wealth and jobs with compensation sufficient to support a family. Laws supporting strikers must be struck down. The unions sent the economy overseas. F— unions. No more “free stuff” for communionists.

        America is not the world’s benefactor. America is first.

        China must be sued into insolvency. Debt payments to China must be cancelled globally. Chinese assets must be frozen globally. “Wuhan” tariffs must be imposed.

        Two strikes and you’re out.

        1918.

        2020.

        China has cooked its own goose.
        __________________________

        “It would be very risky to take on China now.

        It will be even riskier to take on China in the future.

        At some point, righteous people have to stand up.”

        – Newt Gingrich, April 23, 2020

      2. “younger adults need a profession and two spouses working to afford a middle-class home.”

        Derek, that is a legitimate complaint and where significant blame can be placed on the politician.

        You listed a whole bunch of policy points that I thought were excellent. You have valid points regarding each one of them. In this reply you are one of the few dealing with policy that need not be attached to a political party.

        Outsourcing
        immigration
        education
        debt and college
        abortion (Though you haven’t said it, why should it be a federal issue causing such problems)
        Democratic concerns of minorities both good and bad but I would prefer their concern for all American citizens.

  10. Roe, a deer, a pregnant deer..
    Ray, a catman on the run…
    Me, the name I call myself…
    Fa, a long long way to run.
    Judge: a preacher pulling thread…

Leave a Reply