By Samuel Damren
This is the second commentary discussing the draft opinion authored by Justice Alito in Dobbs v. Jackson. No commentaries will follow until an actual decision is made and a final opinion available.
The first commentary focused on an assessment of how the American political system and society would respond to a decision overruling Roe v. Wade. In the draft opinion, Justice Alito stated the majority justices “did not pretend” to know the answer to that question. I offered some insights.
But the draft majority opinion also states at page 65 “even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly.”
Surprisingly, however, one principle of stare decisis is absent from the majority opinion’s analysis of Roe v. Wade. That principle is the subject of this commentary.
When Justice William Rehnquist announced the court’s 2000 decision in Dickerson v. United States, he did so from the bench in dramatic fashion. The case involved a challenge to the need and authority of the court to require that individuals in custody be given “Miranda” warnings before police take a statement or interrogate the individual. The Dickerson case upheld the prior Miranda case decided in 1966 on principles of stare decisis.
Instead of first plodding through a short summary of the facts and law, as most Justices do when announcing decisions from the bench, Justice Rehnquist began his oratory with the following: “You have the right to remain silent, nothing you say can be used against you …” and recited the full Miranda warning. It was entertaining.
The language of the written opinion contains the following observations “(w)hether or not we would agree with Miranda’s reasoning and its resulting rules, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.” Pertinent to this commentary, that section of the Dickerson opinion concludes that there was insufficient justification for overruling Miranda because “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”
Miranda was only 34 years old when Dickerson was decided. Roe v. Wade is 49 years old, but Justice Alito’s decision does not mention Dickerson v. United States, much less contain an analysis of whether the abortion rights established in that opinion are now so “embedded” in American society as to “have become part of our national culture.”
This seemingly glaring omission from the analysis in the draft majority opinion is not a matter of oversight. It is a matter of intention and the application of differing principles of stare decisis to the prior decisions of the Supreme Court depending on whether a subsequent Supreme Court views the prior decision as wrongly decided or made without authority.
This distinction is contained in the draft opinion at page 6 where the majority opinion states that the court’s decision in Roe v. Wade was an “abuse of judicial authority” and at page 63 where the majority found “we cannot exceed the scope of our authority under the Constitution.” Certainly, the majority justices who decided Roe v. Wade would disagree and plainly did not think that they were acting outside the scope of their authority at the time they decided the case.
Yet, the distinction is the basis upon which the draft opinion apparently relies to omit a review of whether or not the rights established in Roe v. Wade have become embedded in our national culture. It is critical because no one can seriously argue that over the course of Roe v. Wade’s 49-year history, those rights – exercised by more than 50 million women since 1973 – are not now a part of the national culture.
I previously wrote about the doctrine of stare decisis in a 2000 article in the New England Law Review Titled, “Stare Decisis, the Maker of Custom.” Read the full article, if you want, but a thumbnail explanation is sufficient for this commentary.
Stare decisis is the rule of English common law that requires judges to “stand by” their previous “decisions.” The principle could not be consistently applied until the existence of a reliable and objective system for reporting judicial decisions in written texts. This did not occur until the advent of the Year Books in the late 1200s. The Year Books were initially regarded as “only evidence” of the law, not binding precedent. Over time, the concept took greater root until it was fully enunciated in English and American common law in the 18th and 19th centuries.
Several tensions exist in the application of stare decisis in judicial decision-making. First, the tension between past and present. Given changes in the world, jurists in a “present day,” including Oliver Wendell Holmes Jr., resist being chained to the decisions of jurists made a couple of centuries earlier when the world was much different.
Second, the tension between interpretation and law making. As detailed in the article, the line between judicial interpretation and law making is never clear except to those who assert that their opponent has crossed it. This tension is offset by the recognition of common law jurists that while legislation and the Constitution provide the bricks to a system of governance, they would easily fall apart without the mortar of judicial interpretation to bind them together.
Third, and this was the contribution of the article to the analysis of stare decisis, the elixir of time turns common law interpretations of statutes and the Constitution by a court of final resort into an immutable source of external authority for the judiciary to act as an independent branch of government; and, just as the other two branches, to act as a “maker of customs.”
The point, pertinent to this commentary, is that while persons, agents, corporations and government agencies that make decisions and take actions without authority might find those decisions vacated and of no effect whatsoever, that judicial remedy can never apply to the decisions of a court of final resort, such as the Supreme Court. The Supreme Court’s decisions apply until a constitutional amendment, an act of Congress in non-constitutional cases or a subsequent decision by a succeeding Supreme Court overrules their further application. They are never “void ab initio” for having been made without authority.
Why is this distinction important?
Based on the draft opinion in Dobbs v. Jackson, it appears Justice Alito believes that if the original decision in Roe v. Wade was outside the scope of authority of the Supreme Court, then the court need not, and should not, evaluate how embedded over time the individual rights established by that decision have become in American society and the national culture. Why? Because just as a thief cannot transfer title to stolen property to a third party, in Justice Alito’s view, the Roe v. Wade court never had authority to make the decision it did.
Whereas, if the original decision in Roe v. Wade is correctly viewed as one that while perhaps wrongly decided in the first instance nevertheless lawfully expanded individual liberties by judicial act, then in deciding a half-century later whether or not to take away those established individual liberties, today’s justices must evaluate whether a women’s constitutional right to an abortion has become embedded in, and a part of, the national culture. If it has, then under the test set forth in Dickerson v. United States, Roe v. Wade should not be overruled.
As applied to the wider context of the political system, if the Supreme Court as the final arbiter of the rule of law can be said by a subsequent Supreme Court to have acted outside its judicial authority then why should Americans – who believe that the Supreme Court might be doing so again in deciding some future case – be obligated to adhere to that decision in the interim.
The admonition that the prior decision is the law of the land until overruled, perhaps 50 years in the future, will ring hollow to the ears of those believers, whatever side of the political spectrum they might occupy. The chant by the crowd of pundits and believers - WHY SHOULD WE WAIT? - will be the most enduring legacy of Dobbs v. Jackson.
The next commentary in this series will await the actual decision in Dobbs v. Jackson and examine what path the majority justices actually set for the American political system and our society.
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