Why Sen. Feinstein’s Roe v. Wade ‘Superprecedent’ Argument Couldn’t Be More Wrong, and Dangerous

COMMENTARY Courts

Why Sen. Feinstein’s Roe v. Wade ‘Superprecedent’ Argument Couldn’t Be More Wrong, and Dangerous

Mar 28th, 2017 4 min read

Commentary By

Hans A. von Spakovsky @HvonSpakovsky

Election Law Reform Initiative and Senior Legal Fellow

Elizabeth Slattery @EHSlattery

Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies

Sen. Dianne Feinstein on the first day of the Senate Judiciary Committee confirmation hearings for Neil Gorsuch to be associate justice of the Supreme Court on March 20, 2017. Bill Clark/CQ Roll Call/Newscom

Key Takeaways

During the hearing on Gorsuch’s nomination to the Supreme Court, Democratic senators kept pushing him about his views on precedent.

Feinstein referred to Roe v. Wade as “superprecedent,” noting it had been reaffirmed over three dozen times in other SCOTUS decisions.

Gorsuch described precedent as “our history” and noted that “it adds to the determinacy of law.”

During the marathon hearing on Neil Gorsuch’s nomination to the Supreme Court, Democratic senators kept pushing him about his views on precedent. His answers didn’t seem to satisfy them — but then that would have been impossible, since their views on precedent are political, not legal.

Their interest is not in having a stable, predictable, and therefore manageable legal system that applies the Constitution, statutory law, and prior decisions of the Supreme Court in a uniform and consistent manner. Their interest is in preserving the decisions they like on issues such as abortion (Roe v. Wade), and overturning the decisions they don’t like on issues such as the First Amendment (Citizens United v. FEC), and voting rights (Shelby County v. Holder), regardless of constitutional principles. So how do the courts apply precedent, and how should it be applied? And when should prior precedents be overturned? 

Yet stare decisis is not “a universal inexorable command,” Justice Louis Brandeis observed, and the Supreme Court may bow “to the lessons of experience and the force of better reasoning.”

The answer to the second question is important. One cannot take the position that prior decisions of the Supreme Court can never be overturned; otherwise, Plessy v. Ferguson (1896), which upheld state racial segregation laws under the mistaken doctrine of “separate but equal,” would still be the law of the land. That doctrine was belatedly repudiated in Brown v. Board of Education in 1954.

Gorsuch, along with 11 other judges and leading lexicographer Bryan Garner, wrote a legal treatise on this topic, “The Law of Judicial Precedent,” which describes “how past decisions guide future ones.” The Supreme Court has laid down guideposts for when it will overrule a past decision or invoke the doctrine of stare decisis (“to stand by things decided”) to uphold that decision.

Stare decisis is meant to provide stability in the law. Alexander Hamilton wrote in Federalist 78 that as a safeguard against the “arbitrary discretion” of judges, they should follow “rules and precedents which serve to define and point out their duty.” Yet stare decisis is not “a universal inexorable command,” Justice Louis Brandeis observed, and the Supreme Court may bow “to the lessons of experience and the force of better reasoning.”

At his confirmation hearing, Gorsuch explained several factors that judges weigh when deciding whether an old decision is still good law: the age of the decision, how much people have come to rely on it, and whether it has been reaffirmed over the years. Judges also look at whether the decision is “an island” — or, part of a doctrine that has developed, the workability of the decision, and whether it’s too confusing for lower court judges to apply in a consistent manner.

Gorsuch described precedent as “our history” and noted that “it adds to the determinacy of law.” In his mind, judges start with a “heavy presumption” in favor of precedent, but in some instances judges may nevertheless overrule an earlier case.

The Democratic members of the Senate Judiciary Committee were eager to hear Gorsuch’s views on cases they like, particularly Roe v. Wade. Indeed, Sen. Dianne Feinstein, D-Calif., ranking member of the committee, referred to Roe v. Wade as “superprecedent,” noting it had been reaffirmed more than three dozen times in other Supreme Court decisions.

But there is no such thing as “superprecedent.” A later court may choose to revisit a prior decision if a new case presents the opportunity to reexamine the legal reasoning applied, when doubt has arisen over its legitimacy and constitutionality.

The Supreme Court has done just that in many cases over the years. In addition to Brown v. Board of Education, which took 58 years to overturn the obviously wrong “separate but equal” doctrine of Plessy v. Ferguson in 1896, the Supreme Court in 1976 — in Gregg v. Georgia — threw out the ban on capital punishment that had been erroneously established only four years before in Furman v. Georgia.

There’s also Lawrence v. Texas (2003), in which SCOTUS overturned the prior ruling that anti-sodomy laws were constitutional in Bowers v. Hardwick (1986). In McLaughlin v. Florida in 1964  and Loving v. Virginia  three years later, the Supreme Court reversed the ruling that laws prohibiting interracial cohabitation and marriage were constitutional, established in 1883 in Pace v. Alabama.

In Erie Railroad Company v. Tompkins (1938), the Court reversed nearly 100 years of federal civil procedure when it overturned 1842’s Swift v. Tyson. And in Leegin v. Creative Products, Inc. v. PSKS, Inc. in 2007, the Supreme Court held that resale price maintenance is not illegal, per se, under federal antitrust law, overruling a 96-year-old precedent of Dr. Miles Med. Co. v. John D. Park & Sons Co. in 1911.

Should other recent decisions, such as NFIB v. Sebelius (2012), which upheld Obamacare as constitutional in a very questionable decision, remain precedent? Should the 2015 decision of Obergefell v. Hodges, in which five members of the Supreme Court suddenly discovered a “right” to gay marriage in the Constitution after more than 200 years of its existence?

There is no question that we need the doctrine of stare decisis in order to have an effective legal system in which judges, lawyers, government officials, and the public can rely on prior interpretations of what the law and the Constitution require. But the importance of having precedent as a guiding principle does not trump another principle — that legally wrong decisions that do not comply with the requirements and limitations of the Constitution must be reconsidered. In fact, the Supreme Court has an obligation to overturn such decisions.

When Gorsuch was asked about whether he agreed with specific decisions, he said, “It’s not a matter of agreeing or disagreeing, senator. Respectfully, it’s a matter of it being the law. And my job is to apply and enforce the law.” He also explained that, like many nominees before him, he would not give any “hints or previews or intonations about how I would rule.” He said that judges “shouldn’t be required to make campaign promises” in order to be confirmed.

Gorsuch is certainly correct that nominees should not be required to make promises about how they will vote in order to be confirmed. But as a justice on the highest court — the court that establishes precedents — he will have the opportunity to do what lower court judges can’t do: reconsider prior decisions of the U.S. Supreme Court that do not comply with the Constitution or that have misinterpreted federal law. Here is hoping that he fulfills that obligation.

This piece originally appeared in Conservative Review

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