“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