Chief Justice John Roberts last week made it clear that the Supreme Court over which he presides will not hesitate to sweep away its own major constitutional rulings when doing so is necessary to defend America’s bedrock governing document.
The announcement of that guiding core principle means two very big things. First, Roberts and his fellow strict constructionists on the court are now armed and ready with a powerful rationale for overturning the 1973 Roe v. Wade abortion ruling if Justice Anthony Kennedy or a future justice becomes the fifth vote against Roe.
Secondly, successfully placing Roberts atop the high court is beginning to look like former President George W. Bush’s most important legacy – a gift that will keep on giving for conservatives for decades.
In last Thursday’s 5-to-4 Citizens United v. Federal Election Commission ruling dismantling the McCain-Feingold campaign law, Roberts joined with fellow Bush appointee Justice Samuel Alito to issue a separate concurrence “to address the important principles of judicial restraint and stare decisis implicated in this case.”
While Roberts conceded that “departures from precedent are inappropriate in the absence of a ‘special justification,’” he quickly added that “At the same time, stare decisis is neither an ‘inexorable command’… nor ‘a mechanical formula of adherence to the latest decision’ … especially in constitutional cases,” noting that “If it were, segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants.”
Instead, under the “stare decisis” judicial doctrine of respecting past rulings, “When considering whether to re-examine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.” The chief justice declared: “stare decisis is not an end in itself.”
The court’s most senior liberal, Justice John Paul Stevens, even found himself haunted by his own words on the subject of when precedent can be discarded, courtesy of Roberts. In a 1995 dissent, Stevens had argued that returning to the “‘intrinsically sounder' doctrine established in prior cases” can “better serv[e] the values of stare decisis than would following” some “more recently decided case inconsistent with the decisions that came before it.”
Moreover, when Roberts mentions a need to “curtail the precedent’s disruptive effects” and imagines instances in which a “precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases,” the “hotly contested” Roe decision, which 37 years ago disrupted the abortion laws of all 50 states, cannot help but come to mind.
He also said a precedent could be targeted for destruction if its “rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.” That uncannily describes Justice Antonin Scalia’s long-held objections to Roe v. Wade, and the unusual joint opinion that shored it up in 1992 in the Casey decision.
What more ambitious undertaking for a chief justice could there be than to define the constraints of stare decisis? Yet clearly it was exactly that kind of leadership Bush was looking for when he chose Roberts.
As White House aide Dan Bartlett told the press the day Bush nominated him for the court in July, 2005, Roberts had “set himself apart in an elite group when it comes to his qualifications.”
Bartlett noted that “this is somebody who graduated with honors, both undergrad and Harvard Law.” But the Bush adviser also pointed to the fact that the former president “likes to size people up himself, make his own judgment” and “make sure the person matched the resume … but also had those innate qualities you’re looking for – the character and temperament and judgment, and, frankly, leadership qualities that you want in the highest court in the land.” Bush had done that during a long visit with Roberts in the White House residence.
Roberts “was class president,” Bartlett pointed out. “He was team captain of the football team, somebody who just exhibited leadership qualities right out of the gate; went to Harvard and really set himself apart there as well, as I said, graduating with honors, as well as being part of the paper there, and doing a lot of things that distinguished himself.”
If Roberts really did just establish clear restrictions on the power of faulty Supreme Court precedents, it might not just mean a mechanism for the eventual conquest of Roe v. Wade, and victory for pro-lifers; a whole series of widely ranging liberal decisions going back to the activist Warren Court era could eventually be in jeopardy too.
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