Ramos ruling reflects Roe v. Wade reversal route

By Marshall H. Tanick
BridgeTower Media Newswires
 
MINNEAPOLIS, MN — The decision of the U.S. Supreme Court in a recent murder case out of Louisiana may hold the key to the vexing issue of the vitality of the doctrine of abortion rights stemming from the decision of the United States Supreme Court in Roe v. Wade, 410 U.S. 113 (1973).

Both in the majority decision and in a significant concurring opinion late last month in Ramos v. Louisiana, 2020 WL 1906545 No. 18-5924 (April 20, 2020), the justices, both collectively and individually, provided a road map for possible reversal of the Roe.

Ramos Ruling

The Ramos case had been pending before the court since it heard oral argument on the first day of its 2019-2020 term last October. It was an appeal by a Louisiana man of a state second-degree murder conviction by a 10-2 split jury under Louisiana’s unusual law, emulated in only one other state, Oregon, which allows non-unanimous jury verdicts in felony cases. The Oregon law in had been upheld on a narrow ground by a 5-4 ruling of the court nearly 50 years ago in Apodaca v. Oregon, 406 U.S. 404 (1972) with the decision turning on the concurrence by Justice Louis Powell that grudgingly joined the majority upholding the measure against constitutional challenge under the Sixth Amendment of the U.S. Constitution, which guarantees the right to a jury for criminal trials, a counterpart of the Seventh Amendment provision for jury trials in most civil cases.

The high court in Ramos, by a 6-3 ruling, deemed the Louisiana law an unconstitutional deprivation of the right to a jury trial, which the Framers understood to mean unanimity. The majority decision, written by Justice Neil Gorsuch, pointedly noted the origins of the law, which were grounded in racial prejudice in the late 19th century, comparable to the anti-Semitism which sparked the Oregon law decades later during the midst of the depression in the 1930s. That taint provided a foundation for the majority decision invalidating the Cajun State law, which, incidentally, had already been repealed by the time Ramos reached the high court.

Ramos was notable in several respects. First, in applying the Sixth Amendment right to the states, it extended the doctrine of incorporation, which extends provisions of the Bill of Rights to the states through the vehicle of the Due Process clause of the Fourteenth Amendment. That process began, incidentally, in a Minnesota lawsuit, the famous prior restraint case barring censorship of the press in Near v. Minnesota, 283 U.S. 697 (1931) and has been applied to nearly all of the constitutional provisions of the Bill of Rights since that time.

There is another Minnesota connection to the incorporation tenet. Fifteen years before Near, the high court had dismissed as so farfetched as to be “beyond cavil,” the notion of applying the Seventh Amendment jury right in civil cases to the states in a case from Minnesota, Minneapolis & St. Louis Ry. Co. v. Bombolis, 241 U.S. 211 (1916), a concept that was capsized in Near.

Roe ruminations

But it was the ruminations about the role of precedent, or stare decisis, that stood out in the Ramos decision and has the most significant implications for the vitality of the reproductive rights recognized in Roe v. Wade.

Justice Gorsuch’s majority decision did not directly and explicitly overrule Apodaca, because it was not viewed as “binding” precedent since the decision turned on Justice Powell’s grudging concurrence. But the Gorsuch opinion did unceremoniously consign it to the “dust bin of history.”

In doing so, he addressed the process by which the high court goes about overturning precedent, a practice that, contrary to common misconception, has occurred more than 200 times during the republic’s existence. He laid out a constellation of factors that are utilized in overcoming the “high (but not insurmountable) bar” posed by stare decisis. They include whether the case raises a constitutional issue, rendering is more susceptible than statutory interpretation to be overruled; the “quality” of the prior decision; its “consistency” with other related decisions; legal developments that have occurred since that time; how long the precedent has been on the books; the considerations of stability; and the public’s reliance upon the decision. All of these are to be taken into account in determining whether the “time has come to overrule precedent.”

The majority decision in Ramos also noted that, while formidable, precedent has been overturned in many “notable and consequential decisions” of the high court over the years, highlighted by cases such as Brown v. Board of Education, 347 U.S. 443 (1954), which overruled the precedent of racial separation under the “Separate but Equal” doctrine established by Plessy v. Ferguson, 163 U.S. 537 (1896), to Obergefell v. Hodges, 576 U.S. 644 (2015), which invalidated state laws barring “same sex” marriage, despite the court upholding that same prohibition in a Minnesota case, Baker v. Nelson, 409 U.S. 810 (1972). Incidentally, the court did not grapple with any of those precedent-busting considerations in the Obergefell case, directly addressing the merits of same sex marriage provision while curtly noting that Baker is “overruled,” without further explanation.

The discussion of overruling precedent, largely on an abstract basis in Justice Gorsuch’s majority decision, pales in comparison to a concurrence by Justice Brett Kavanagh, who focused solely on that issue. He boiled down the various factors to a triad: whether the prior decision is “grievously or egregiously wrong;” whether it has brought about “significant negative … consequences;” and the “reliance interest” surrounding the prior decision.

Using those three factors, he opined, would bring about consistent and “neutral” methodology.

Meanwhile, the other justices fractured. Justice Clarence Thomas joined the majority, but on different grounds: the Privileges and Immunities clause of the Fourteenth Amendment, while a pair of justices, Chief Justice John Roberts and Elena Kagan, joined a dissent by Justice Samuel Alito in stressing the importance of fidelity to stare decisis due to the Oregon Apodaca case.

Roe risk

The majority opinion in the Ramos case tottering to the border line of overturning precedent, coupled with the streamlined road map in Justice Kavanaugh’s solitary concurrence, put the Roe case at risk. Ramos was not the first time lately that the tribunal has given a not-so-veiled hint of its potential demise. The path for that undertaking was articulated two years ago by the court in a decision that did explicitly overrule a prior decision. At the end of its session in 2018, it held that objecting labor union members may not be required to pay union dues, in violation of their First Amendment right of freedom of expression in Janus v. AFSCME, 138 S.Ct. 2448(2018). The ruling was long sought after by anti-employee rights groups, overruling a 41-year old precedent that rejected the same proposition in a case involving teachers in Detroit, Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

The narrow 5-4 majority ruling of the Janus case, authored by Justice Alito, who ironically beseeched adherence to precedent in his dissent in Ramos. A longtime foe of labor unions, he identified six considerations in determining whether precedent should be scuttled, balanced against the need in the jurist’s view to maintain stability, certainty of law, and to uphold the “integrity” of the legal process. The factors explicitly deployed to overrule precedent in Janus, were essentially the same ones, with some slight modification, invoked by Justice Gorsuch in the majority decision in Ramos, which were trimmed to the threesome in Justice Kavanagh’s concurrence.

The latter was not yet on the court for the Janus case, which provided the foundation for his more constricted road map for reversal in his Ramos concurrence. Since he is the likely swing vote on abortion rights litigation, his truncated three-prong standard gives a discernable clue as to how he might rule when the issue presents itself.

That opportunity might come quite soon. The justices have adjudication of a major abortion rights case on their to-do list before they adjourn for the summer. The case, June Medical Services v. Russo, No. 18-1323, also from Louisiana, involves statutory imposition of strict clinical restrictions that would effectively prevent most women, particularly poor minority ones, from having access to officially authorized medical facilities to perform an abortion in that state.

While the case does not evoke an up-or-down ruling on Roe, it could make significant in-roads into it and be a link in the chain that could only undo their Roe doctrine. A decision upholding the Louisiana restrictive measure could be a stepping stone for evisceration of Roe rights in the future, just as Justice Alito in the Janus case relied upon a decision he authored four years earlier in Harris v. Quinn, 134 S.Ct. 2618 (2014), slicing into the ability of unions to collect dues in a public sector, as a predicate for the more expansive ruling in Janus applicable to both public and the private sectors.

A challenge to the vitality of Roe, which seems inevitable, may be somewhat ironic, because its author, Justice Harry Blackmun from Minnesota, had promulgated a year before the Roe decision, one of the court’s most emphatic showing of support for stare decisis,. In Flood v. Kuhn, 407 U.S. 258 (1972), Justice Blackmun authored a case that rejected an antitrust challenge to the then-existing contractual requirement in Major League Baseball that bound players to one team without any mobility options. Although nearly all of the justices felt that the arrangement, known as a ”reverse clause,” was violative of anti-trust law, its status was immutably bolstered by prior case law, which had upheld it in different contexts dating back to the early part of the century. E.g., Federal Baseball Club v. National League, 259 U.S. 200 (1922)(Sherman antitrust law not applicable because baseball is not a “business”)

While recognizing that those determinations probably were imprudent, the court, through Justice Blackmun’s majority ruling, was unwilling to set aside precedent on grounds that “there is merit in consistency” even though “beneath that consistency is a layer of inconsistency.” In short, the court felt compelled to uphold the principle that baseball is not a “business subject to anti-trust laws,” even though it felt that precept to be untenable in modern times, a triumph of precedent over practicality. E.g. Federal Baseball Club v. National League, 259 U.S. 200 (1922).

Both Justice Gorsuch, the author of the Ramos decision, and Justice Kavanagh, who wrote the potentially telling concurrence, have shown their inclination to set aside precedence they don’t like under the guise of constructing a subjective semantic obstacle course of hurdles that are relatively easy to overcome. That makes the high court well-poised to complete the nearly five decade marathon to eviscerate, if not eliminate, the rights stemming from the Roe case.

These developments underscore the importance of this year’s presidential election, underscored by President Donald Trump’s 2016 campaign pledge to appoint anti-Roe jurists, which he has largely carried out, as well as the Senate, which confirms or rejects presidential judicial nominees. One or more vacancies are likely on the Supreme Court in the immediate future, due to the aging of its members, whose average age, excluding Trump’s two appointees, Gorsuch and Kavanagh, is 72.

Who fills upcoming vacancies on the high court will go a long way to determining whether the road map to in reversal articulated in Ramos is resisted or Roe falls by the wayside.

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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.