The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I mentioned recently John Hart Ely's famous criticism of Roe v. Wade. A less famous fact about Ely is this: 19 years later, after the Supreme Court decided not to overrule Roe in Planned Parenthood v. Casey, he wrote a letter to the authors of the opinion. You can find it in his final collection, On Constitutional Ground. Here is the letter, as well as, in italics, his commentary on the letter from his book:
Despite my serious misgivings about Roe, I've thought for some years it would be a mistake to overrule it. Though my views to this effect were reported in Lincoln Caplan's book The Tenth Justice 126 (1987), I haven't previously said this in print. Since I obviously hate to leave any thought unexpressed, and even more obviously and am not running for a judicial appointment–it's kind of hard to envision the president who would appoint someone who (a) is pro-choice but (b) was a conspicuous critic of Roe, and by the way (c) doesn't think it should be overruled–I do so now.
I'm not much of a fan letter writer, but it seemed to me an exception was in order here, since I know you'll receive a lot of grief from true believers on both sides of this one.
Your joint opinion is excellent–I guess law professors are allowed to say that occasionally–not only reaching what seem to me entirely sensible results, but defending the refusal to overrule Roe v. Wade splendidly.
As you're aware, I thought (and think) Roe was constitutionally indefensible, but overruling it now would have been a terrible mistake as well. Our society has indeed built up expectations on the basis of it, particularly as regards the aspirations of women. And falling into a pattern whereby presidents appoint justices with the essential promise that they will overrule particular cases, and then having them dutifully proceed to do so, would weaken the Court's authority immeasurably.
The nation is in your debt.
Yes, I am aware that saying nice things about Casey is politically incorrect. That's why I sent them the letter, because I knew few others would.
I don't have a well-developed theory of stare decisis, that is, of when courts should defer to precedent rather than reconsider it afresh; I'm actually not sure anyone does. My fear, of course, is that I don't think Roe should be overruled because I approve of it politically if not constitutionally, and there may indeed be something there. I also think, as the letter suggests, that Roe has contributed greatly to the more general move toward equality for women, which seems to me not only good but also in line with the central themes of our Constitution. I don't think a principled opinion along those lines could have been written at the time–"We don't know exactly how, but somehow this holding will importantly help undergird a more general movement toward women's equality, which movement is mandated by the Constitution" obviously doesn't make it–but I am clear that overruling it now would wreak havoc on that constitutionally legitimate movement.
So far as my constitutional approval of Casey's upholding of Certain laws affecting abortion is concerned, requiring a woman to reflect for twenty-four hours before getting an abortion or informing her of the costs (along with the benefits) of a abortion may reduce the likelihood that she will get one, but that strikes me as an entirely appropriate outcome, unless "pro-choice" is to become mere code for "pro-abortion." Of course, should such waiting periods be abused by pro-lifers (by either side for that matter) and become simple windows for overreaching propaganda, they will in fact not conduce to choice and thus would be properly invalidated. The extent to which they are so used seems an appropriate question for serious empirical study.
There are at least three remarkable things about this letter. One is Ely's ability to maintain different positions on different tracks—policy, law, and precedent. Just as he had no trouble saying a decision was bad law even if it was good policy, he had no trouble saying it was good precedent even if it was bad law.
The second is that Ely apparently had no theory of stare decisis! Ely was one of the greatest constitutional scholars of his generation, of any generation, and yet had no theory of the most common and basic questions of constitutional adjudication, and doubted that anybody did. And how can one be confident that Casey is a "splendid" opinion if one does not have a theory of stare decisis, since the most controversial part of the opinion was precisely its theory of stare decisis?
If one lacks a principled theory of precedent, then decisions about precedent allow one to inject one's own policy views into constitutional adjudication, which is precisely what Ely managed to avoid doing over Roe. The third remarkable thing is that Ely nonetheless saw and was willing to admit this point. As to the accusation of results-oriented stare decisis, Ely admits "there may indeed be something there."
So as to Ely's position on Casey one can simultaneously say (1) that he was admirably principled, (2) that he may have been reading his own policy views back into the law after all, and (3) that there's no criticism of his position that he hasn't already leveled against himself.