The Roberts Court Is Poised To Unravel Roe v. Wade's Precedential 'Paradox' | Opinion

On Wednesday, the Supreme Court considered the validity of Mississippi's 15-week abortion ban. Yet, there was surprisingly little discussion about whether the 14th Amendment of the Constitution, as it was originally understood, permits the states to prohibit pre-viability abortions. Rather, the bulk of the two-hour proceeding focused on whether the Court should stand by Roe v. Wade, the landmark 1973 precedent that conjured a constitutional right to abortion.

Roe's defenders argue that overruling the precedent would be unpopular, so the Court should maintain this obviously erroneous decision to avoid weakening the Court's public standing. But this position is paradoxical. The Court's legitimacy depends on independent jurists who faithfully decide cases based upon written law. By contrast, judges who base their decisions on popular opinion subvert the Court's legitimacy.

Thankfully, the Roberts Court now seems poised to unravel Roe v. Wade's precedential paradox. After oral arguments, a majority of the justices seem to agree that Roe should be overruled because it is wrong, regardless of how supporters of that decision will respond. The Court, in other words, appears set to decide the case based on the law—and the political chips will fall where they may.

In 1973, the Supreme Court held in Roe that the Constitution guarantees a right to abortion during the first and second trimesters of pregnancy. Two decades later, in Planned Parenthood v. Casey, the Court purported to reaffirm Roe, but in reality rewrote the precedent. According to Casey, states could prohibit abortions after the point of fetal "viability"—a line that changes based on neonatal medicine—but could not impose an "undue burden" on abortions prior to viability. The controlling opinion was written jointly by Justices Sandra Day O'Connor, Anthony Kennedy and David Souter.

Much of the opinion in Casey focused on a legal doctrine known as stare decisis, which is Latin for "stand by the things decided." Even though the troika agreed that Roe was not correctly decided, they worried that overruling Roe in the face of popular opposition would weaken the Supreme Court's institutional standing. "To overrule under fire in the absence of the most compelling reason to re-examine a watershed decision," they explained, "would subvert the Court's legitimacy beyond any serious question."

Chief Justice William Rehnquist accurately characterized this paradox. From the bench, he explained that the Court's opinion in Casey can be "be viewed as a surrender to those who have brought political pressure in favor" of Roe. Rehnquist intoned, "Once the Court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself." Justices O'Connor, Kennedy and Souter plunged the Court into a freefall, from which it is still perpetually plummeting.

In dissent, Justice Antonin Scalia was "appalled" that the Court's decision was "strongly influenced...by the substantial and continuing public opposition [Roe] has generated." Scalia found "frightening" the notion that the Court would alter its decision "in order to show that we can stand firm against public disapproval." Scalia charged the Casey majority with "almost czarist arrogance" for standing by a decision precisely because the Court is "under fire." To the contrary, standing firm would mean ignoring the political consequences of its rulings.

On Wednesday, two current members of the Court channeled the logic of the justices they clerked for.

Chief Justice John Roberts, who clerked for Rehnquist, recognized Roe's precedential paradox. He said that Casey seems to require the Court to consider whether a decision will be "popular." But this reasoning, Roberts observed, was "paradoxical." How could it be that the Court should be "firmer," and have more respect for decisions, because they are "more unpopular?" Sustained opposition to a decision, after all, provides some support that the Court was wrong to reach that very decision in the first place. But in any event, the Court should not be in the business of assessing the political consequences of any potential ruling.

Justice Amy Coney Barrett, who clerked for Scalia, raised this issue directly during the oral arguments. She recognized that Casey adopted a "different conception of stare decisis." That case "very explicitly took into account public reaction" when deciding whether to overrule Roe. For three decades, Casey has rested on this logical fallacy: First, judicial independence is central to the Court's legitimacy; second, the Court should avoid decisions that threaten the Court's legitimacy.; third, therefore, the Court should uphold an erroneous precedent because that decision would be rendered "under fire." Huh? How can judicial independence be maintained if the justices are basing their decisions on the latest Gallup poll?

Judges simply are not equipped to make these types of assessments of popular opinion. More likely than not, the justices will look inside at how important they view the precedent, rather than looking outward. This introspection is inconsistent with the notion of a written rule of law itself.

The Roberts Court is now poised to correct one of the largest jurisprudential blunders in Supreme Court history. A decision to repudiate Casey's flawed conception of stare decisis would restore, not weaken, the Court's legitimacy. Now, the Court can end its freefall into what Rehnquist called the "bottomless pit." The justices will make their decisions. Let the political chips fall where they may.

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the co-author of An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.

The views expressed in this article are the writer's own.