Chief Justice Roberts's Question About Stare Decisis and Originalism

What methodology should be used to determine if Roe was wrong?

During oral arguments in Dobbs, Chief Justice Roberts asked a question about the relationship between stare decisis and originalism that I hadn't considered.

CHIEF JUSTICE ROBERTS: On stare decisis, I think the first issue you look at is whether or not the decision at issue was wrongly decided. I've actually never quite understood how you evaluate that. Is it wrongly decided based on legal principles and doctrine when it was decided or --or in retrospect?

Because Roe --I mean, there are a lot of cases around the time of Roe, not of that magnitude but the same type of analysis, that -that went through exactly the sorts of things we today would say were erroneous, but do we look at it from today's --if we look at it from today's perspective, it's going to be a long list of cases that we're going to say were wrongly decided.

When Roe was decided in 1973, the Court was decidedly non-originalist. Rather, the excesses of the pragmatic Warren Court were still fresh. The Court would make stuff up because it could. Justice Blackmun did not engage in any meaningful historical analysis that the Fourteenth Amendment, as originally understood, protected a right to abortion during the first two trimesters. The viability line was made up out of thin air. The mere fact that some states permitted abortions prior to quickening (whatever that standard means) does not raise that practice to the level of a fundamental right.

Today, the Court is far more formalist, and often hews towards originalism. If Roe were decided as a case of first impression in 2021, there is little doubt how the case would come out. This much is clear.

But Roberts asked a different question. When assessing whether a decision is wrong for purposes of stare decisis, should courts "look at it from today's [formalistic] perspective" or through the methodology that prevailed when the case was decided? Under Justice Blackmun's pragmatic legal philosophy, Roe was hunky-dory. But under the formalistic approaches from Justices White and Rehnquist in dissent, Roe was badly wrong. Which approach controls?

Now what exactly is Roberts asking about? Is he asking about originalism? Or is he asking about stare decisis? Or both? Recently, Steve Sachs, Mike Ramsey, and others have written that originalism and stare decisis are distinct concepts. A judge can be a faithful originalist, even if he adopts a flawed model of stare decisis. I'm not so sure you can disentangle them completely. And Roberts's question illustrates why.

To even consider overruling Roe, one most first determine that Roe was wrong. And to determine Roe was wrong, one must decided if originalism, or some sort of hippy-dippy jurisprudence controls. Could a faithful originalist argue that the "wrongness" prong of stare decisis should turn on non-originalist methodologies?

I suspect that Justice Thomas would answer Roberts's question by saying follow originalism all the way down. Originalism remains at the core of all aspects of constitutional jurisprudence, including stare decisis. Like a Russian nesting doll, originalism remains in the center.

I need to give this question some more thought.

 

Comments

[Brett Bellmore]

So, he might be willing to say Roe was correctly decided at the time, because at the time they were just pulling things out of their asses, and look: It's brown and stinks! It might have been correct!

[Sebastian Cremmington]

I would say when a huge political movement based around an issue develops and is sustained over decades and there is a very negative stalemate…then the Supreme Court can weigh in if the Supreme Court can do something about it one way or the other. I think the Supreme Court weighed in initially because they believed abortion was fundamental to women’s rights…I think that was fine to believe at the time but I don’t believe that to be true in 2021.

So the big movements have been abolition, segregation, women’s rights, and abortion. The Supreme Court failed with respect to abolition and we had a constitutional crisis. The Supreme Court weighed in on segregation and was a positive force and we didn’t have a constitutional crisis. With respect to women’s rights and equality women have made a lot of progress since Roe but I don’t think abortion turned out to be fundamental to women’s rights…and by creating a right to an abortion the Supreme Court inadvertently created another major movement that has led to conflict in our society. I think it’s time for the Supreme Court to put an end to the pro-life movement which I believe is a negative political force.

[Rossami]

A lot of people would say that the pro-choice movement is the negative political force. I think you're both wrong - that the negative political force is a result of the Supreme Court trying to take a short cut rather than let actual consensus emerge.

[Sebastian Cremmington]

That’s what I meant—the Supreme Court took action for a good cause (women’s rights) and then their action caused a reaction.

I’m a pro-life Republican but I don’t vote on the issue and I blame the pro-life movement for George W Bush who I believe was the worst president in history…so the reason I believe the pro-life movement has been negative is because of a very concrete reason. And the reason you know the pro-life movement is a negative force is because Trump was a good president and the GOPe fought him at every step in large part because of his ambiguous abortion views and the fact he might not appoint Federalist Society judges. So the pro-life movement will always be a net negative even though I’m pro-life and hope Roe is overturned. Btw, Palestine outlaws abortion and pro-lifers hate Palestine so I’m not sure why in American elections they allow pro-life to trump so many other issues??

[Soronel Haetir]

I see this question having even more applicability to the commerce clause cases. Huge swaths of the modern federal government rest on calling what is neither interstate or even commerce both.

Of course, the difference with the CC is that if the court were to do a sudden U-turn it likely would not take long at all for Congress to submit and the needed states to ratify an amendment restoring the current understanding. Would still be nice if the courts were to make the political branches actually do their job.

[PeteRR]

Getting 3/4s of the states to restore the current understanding of the CC might be a heavier lift than you imagine.

[Kazinski]

"And to determine Roe was wrong, one must decided (sic) if originalism, or some sort of hippy-dippy jurisprudence controls."
And:
"I need to give this question some more thought."

I'm going to go out on a limb and say you're going to decide that originalism all the way down should control the outcome.

[QuantumBoxCat]

I feel bad for all of the law school students who had Josh as a Con-law instructor.

[Rev. Arthur L. Kirkland]

Attending South Texas College Of Law seems a self-inflicted problem.

[Doug Heffernan]

In brnovich, one of the guideposts that alito gives (that should be applied today and going forward for all eternity) is the degree to which the practice was widespread in 1982.

1983 to ... is irrelevant.

[mulch]

Since section 2 of the VRA was amended in 1982, that would be the correct frame of reference for an original understanding of the section 2 amendment, which is what Alito did.

[Rev. Arthur L. Kirkland]

"I suspect that Justice Thomas would answer Roberts's question by saying follow originalism all the way down."

Well, not all the way down. At some point, a genuine movement conservative originalist must ask, "What would dear Lord sweet infant eight-pound, six-ounce newborn baby Jesus say to us about this?"

And then, he would call Federalist Society headquarters for the answer.

[Valkanis]

"Justice Blackmun did not engage in any meaningful historical analysis that the Fourteenth Amendment, as originally understood, protected a right to abortion during the first two trimesters. The viability line was made up out of thin air."
This paragraph does not even include any attempt at proof that originalism is the only valid Constitutional interpretative theory; it simply assumes it, which reeks of arrogance.

In fact, nothing in the text or history of the Constitution supports this position, nor the history of the legal interpretation of said Constitution, which features a much more numerous attestation of non-originalist methodology. No other legal systems derived from English law follow it, let alone provide support for the idea that it is required. The Canadian constitution is explicitly interpreted liberally. Australia and New Zealand? Definitely not originalist. The Supreme Court of the United Kingdom recently ruled that convention made Boris Johnson's proroguing of Parliament during controversy about the implementation of the so-called "Brexit" illegal; this convention had never before existed and was not supported by legal reasoning, but policy concerns.

The point is not to advocate for any of these particular systems. You can have your preferred philosophy and advocate for it all you want. Express your views about how the judges should decide cases. The idea that the legal system MUST be this way reminds me of the reasoning of the anti-racists, however. Explaining that this is a bad thing is not required.

[Lee Moore]

This really doesn't have anything at all to do with originalism, it applies to any methods of interpretation that yield different results.
Nor does it have anything much to do with the passage of time.

Let us suppose that in 2022, SCOTUS rules that partisan gerrymandering of congressional districts is not permissible in Illinois and New York, but is permissible in Texas, North Carolina and Florida, using the interpretative principle of "that which is good for the GOP controls."

Then there is an unfortunate fish supper which carries away Justices Roberts, Kavanaugh and Alito. These are replaced by new Justices Obama, Harris and Elias.

A new partisan gerrymandering case comes up in 2023, and six Justices now feel that the correct interpretative method is "that which is good for the Democratic party controls."

Even though it's only a year since the previous precedent was established, and even though neither the old or new majority was using originalism, the same problem arises. Does the prior precedent stand, even though in the opinion of the current Justices, it was arrived at using a woefully inadequate principle ?

I don't think the question is a very difficult one. On the basis of common sense, if the current Justice thinks the old precedent was not a correct interpretation of the law (or constitution) under that Jutice's own preferred interpretative method, then the old case was wrongly decided. But leaving common sense aside, there's Article 6 :

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

This says nothing about being bound by old interpretations of the Constitution etc that the current Justice, under the current Justice's interpretative method, thinks are wrong. That would make old wrong opinions of the law supreme over the actual law as understood by the current judge.

In short, the current Justice should decide what the right answer is using his own current interpretative method (even he himself was part of an old majority that he now thinks was wrong.) And if his right answer disagrees with the old precedent then he should vote to overturn the old precedent.

Stare decisis has a perfectly reasonable place where the current Justice concedes that the answer is not clear under his interpretative method, and that the old precedent is a perfectly plausible reading, even if it might not be a slam dunk. Going along with precedent in such a case is fine.

As far as reliance interests are concerned - does Article 6 have a sub clause that says "except where that might upset reliance interests" ?

[Union of Concerned Socks]

On stare decisis, I think the first issue you look at is whether or not the decision at issue was wrongly decided.

I don't understand this thinking.

The first issue you look at is whether or not the decision at issue was clearly decided, whether "rightly" or "wrongly".

If society in its wisdom comes to believe the issue was decided wrongly, then it will be up to the legislature to provide a cure.

But the legal system cannot be flip-flopping on a generational basis; it must be steadier than that. Roe was utter crap, but it has been decided. To effectively rule that a prior court was simply "wrong" is to open Pandora's box.

[Union of Concerned Socks]

P.S. IANAL; I genuinely don't understand.

[Brett Bellmore]

"Well, it says 2+2=5, and that's wrong. But it's pretty clear, so we'll leave it alone."

[Brett Bellmore]

The basic problem with your approach, is that the people who don't give a damn change the law whenever they're in power, and the people who are trying to be responsible, if they're following your advice, don't change it back. So, over time, the people who don't give a damn win.

Every time. Either they're gaining ground, and the 'law' is getting further from right, or they're holding their ground, because the people who'd return it to being right refrain.