So how are you all holding up?
OK, part 3 of this series was a real slog. But I needed to go back and forth to so many cases to illustrate how the Brennan Court (1956-1985) ditched so many of its precedents in order to reach two decisions that its majority couldn’t even admit were based on “substantive due process”. Even if you are a lawyer, unless you are also a professor of constitutional law it is unlikely that you would know that Griswold (1965), Roe (1973), and Doe (1973) directly contradicted several longstanding precedents (a fact I don’t ever recall seeing in news reports) and that they were all decided after disregarding the standard for declaring state laws unconstitutional that the Court had established in Carolene Products in 1938 — although Justice Douglas tried to obscure that fact with his ramblings about penumbras and emanations in the majority opinion in Griswold — and also contrary to the Court’s express and explicit disavowal of substantive due process just two years before Griswold in Skrupa.
So when I see people, including Cngresscritters, outraged that the Supreme Court refused to uphold Roe under the doctrine of stare decisis, I find it more than a little humorous. If you believe that the Dobbs decision is somehow illegitimate because it didn’t give sufficient respect to stare decisis, and yet you support Griswold, Roe, and Doe, you’ve been conned. And yet, if you have followed this whole series, you’ll see an illustration of the old saying that the path of justice rarely runs smooth, what with the post-Civil War court actively trying to disavow the plain meaning of the 14th Amendment, continuing right up to the latest directional shifts.
The path forward?
So is it possible to say that we’re on the “correct” path now? As a matter of constitutional law, the Supreme Court is on a better path than Roe and Doe established — because it has established definite standards to hear cases rather than at the whims of the justices . . . but are those standards better than the previous standards that the Brennan Court disregarded? The “correct” path? Who can tell?
Thomas Jefferson’s vision was that the country should periodically toss out the Constitution and write a new one from scratch. Was he right? It’s hard to believe that doing so wouldn’t be a sure path to another civil war, and we’ve already had two (counting the American Revolution, which is perhaps best described as a civil war between the “patriots” and the “loyalists”).
Alexander Hamilton would have been happier had the U.S. become a “great man” monarchy. Was he right? It seems that most of our presidents since Woodrow Wilson have been pushing for that, as so many of them want to rely on their “pen and phone” rather than building a coalition using Constitutional powers.
And even longstanding technology challenges us. Samuel Colt invented the working revolver in 1835. Prior to that, guns had to be fired one shot at a time. The gun culture that grew up in the West around the revolver led to a general revulsion about guns. But prior to the 14th Amendment, the states were free to ban guns, and that continued even afterward due to the abomination of The Slaughter-House Cases. But that view has finally been wiped out, and instead we seem overwhelmed by the current rise of a “gun cult”. Can we actually muster a majority for a Constitutional amendment in the face of that cult?
Can we muster a majority for ANY Constitutional amendment? Remember, we passed four (23rd-26th Amendments) in just ten years (1961-71) but have only passed one (27th Amendment) since then . . . and it was introduced for passage by Congress in 1789 but didn’t get enough states to ratify it until 203 years later. I have blamed that on the political nature of Roe and Doe, but nothing guarantees that I’m right. Perhaps we’re too divided to agree on anything
At the time of the Constitution, there was no such thing as the “administrative branch”. Instead, the powers exercised by administrative agencies were considered to be powers of the executive branch, and the Constitution’s vision clearly seems to require a “unitary executive” — in other words, all administrative agencies must be answerable to the President and can only wield powers that he possesses. Yet the Court strayed from that path during the New Deal, permitting the rise of administrative agencies that answered only to themselves: the proverbial “deep state”. In a current Fifth Circuit case, Jarkesy v. Securities & Exchange Commission, the SEC filed charges against someone and then brought a case to an “administrative court” before a judge who was an SEC employee — meaning that the SEC was regulator, prosecutor, and judge in the case. Is that the future we want? The Fifth Circuit Court of Appeals says no, and I agree. But how did we ever get here, with so much power centralized in the executive branch? Do we want to go back to the Constitution, or are we happy flouting it?
The answers to these questions and more define your view of the way the Court wields its powers. And yet, there wasn’t one consistent vision held by the Founders, even though (because of the alliance between Hamilton and Madison, reflected in the Federalist Papers) we tend to think of the Founders as if they were a unitary bloc. Originalists look to the Federalist Papers to determine the original meaning of a provision, because that was the document that Hamilton and Madison (and the first U.S. Chief Justice, John Jay) created when they were trying to sell the Constitution to New Yorkers (and Americans at large). If we take a different position, shouldn’t we justify how we got there?
But the dominant presence was always George Washington, who believed that the most important thing that the post-revolutionary United States of America could do was survive without splitting apart. His vision ran head on into the Civil War, but the side supporting his view won, and the U.S. is still here and still under the same Constitution 233 years later. So if the “correct path” is the one that keeps the United States together, then it’s difficult to know what the correct path is, unless you have perfect foresight.
But a path where the Supreme Court becomes just another legislative body willing to ditch precedents to pursue progressive ends, as reflected in Griswold, Roe, and Doe, cannot be that path. Can it?
Well, now that we’ve had a chance to reflect on the lessons arising from part 3, let’s move on to Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).
The Roe Effect?
One note from part 3: someone pointed out to me an article by a European lawyer named Thomas Shaw entitled “The Early Days of the Right of Privacy”, which was published in one of the American Bar Association publications and cites two British cases from the 1700s. The person who pointed that out was taking issue with my discussion about the right to privacy being an invention of future Supreme Court justice Louis Brandeis in the 1890s. But the article doesn’t deal with the “right of privacy” of the “consensual transactions” type implicated by Justice Douglas and the SCOTUS majority in Griswold, Roe, and Doe; actually, it deals with issues that Americans would classify under the Fourth Amendment regarding searches and seizures. Europeans might not see the difference, but Americans should.
In fact, the Shaw article goes a long way to supporting Justice Rehnquist’s dissenting position in Roe and Doe:
Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court [in a 1967 case] has referred to as embodying a right to privacy.
As noted previously, Roe and Doe were an attempt by the Supreme Court justices to end the debate over abortion at an early stage by presenting their position as mandated by the Constitution. Similar antics happened with Dred Scott, The Slaughter-House Cases, and Lochner. Perhaps this was even done in good faith. But if it was an attempt to silence dissent, it had the opposite effect.
The Republican Party held the presidency for 15 of the next 19 years after the Roe and Doe decisions — despite the fact that those cases came out after President Richard Nixon, a Republican, was already engulfed in the Watergate scandal, which forced him to resign from office about 18 months later. And the one Democrat who held the White House during that span, Jimmy Carter, didn’t get to make any appointments to the Court. Republican presidents Gerald Ford, Ronald Reagan and George H.W. Bush made six new appointments: John Paul Stevens (Ford), Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy (all Reagan), David Souter, and Clarence Thomas (both Bush). These justices replaced, respectively, William O. Douglas, Potter Stewart, Warren Burger, Lewis Powell, William Brennan, and Thurgood Marshall, all six of whom were part of the seven-justice Roe and Doe majorities (although only two, Douglas and Marshall, had been appointed by Democrats).
Of the three holdover judges, two were the dissenting justices Byron “Whizzer” White and William Rehnquist, while the third, Harry Blackmun, wrote the majority opinion in both Roe and Doe and had become popularly identified for his pro-abortion views. Would the judge shifts make a difference?
It would not, for even more controversial reasons.
Casey reaches the Court
Pennsylvania had a strongly anti-abortion Democratic governor named Bob Casey (at the time, both parties had a pro-abortion and an anti-abortion wing; I’m not going to use the euphemisms each side made up (pro-choice and pro-life)). The Pennsylvania government enacted several restrictions, most controversially including a “spousal notification” provision before an abortion could be provided. Planned Parenthood, which quickly became the nation’s largest abortion provider, challenged the laws in court — and it became clear that the anti-abortion side wanted a Supreme Court showdown, with the six new justices being forced to take sides. And so Planned Parenthood v. Casey came to the Court.
The Roe side narrowly prevailed, 5-4. Only two of the GOP’s six newly-appointed justices — Scalia and Thomas — joined with the two existing opponents of Roe (White and Rehnquist) in voting to overturn it. The controlling opinion was a plurality opinion jointly written by Justices O’Connor, Kennedy, and Souter, which was joined by Justices Blackmun and Stevens on the essential holdings.
Right off the bat, the opinion acknowledged the roots of these rulings in “substantive due process” and defended it instead of recoiling, as the Brennan Court had done (citations omitted):
Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the cases before us is "liberty." Although a literal reading of the Clause might suggest that it governs only the procedures by which a State may deprive persons of liberty, for at least 105 years, the Clause has been understood to contain a substantive component as well, one "barring certain government actions regardless of the fairness of the procedures used to implement them." As Justice Brandeis (joined by Justice Holmes) observed, "[d]espite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure. Thus all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States." {Justice Harlan wrote:] "[T]he guaranties of due process, though having their roots in Magna Carta's 'per legem terrae' and considered as procedural safeguards 'against executive usurpation and tyranny,' have in this country 'become bulwarks also against arbitrary legislation.'"
The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight Amendments to the Constitution. But of course this Court has never accepted that view.
But of course this last statement thumbs its nose at Carolene Products, which said that state laws that didn’t fall “within a specific prohibition of the Constitution” were presumed to be constitutional. Next, the opinion adopts Justice Brennan’s “living Constitution” view:
It is also tempting, for the same reason, to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. But such a view would be inconsistent with our law.
And then the plurality cites several Brennan Court cases that applied his version of living Constitutionalism and substantive due process.
But the presidents who appointed those three judges (Reagan and Bush) hadn’t actually expected that they were appointing Brennan clones. The plurality wasn’t doing much to help its cause with its opponents with those arguments. So the opinion next raises the straw man of eugenics, claiming that without Roe, eugenics might return:
[Without Roe,] the State might as readily restrict a woman's right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example. Yet Roe has been sensibly relied upon to counter any such suggestions.
Next, the plurality makes an attempt to defend Roe by contrast with Lochner and Plessy:
The examination of the conditions justifying the repudiation of [the Lochner doctrine] by West Coast Hotel and Plessy by Brown is enough to suggest the terrible price that would have been paid if the Court had not overruled as it did. In the present cases, however, as our analysis to this point makes clear, the terrible price would be paid for overruling.
Why did the plurality think there would be a “terrible price” for overruling Roe? Because the plurality believed that “giving in” to the anti-abortion position would show weakness on the part of the Court, regardless of whether Roe complied with Constitutional law.
But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine awatershed decision would subvert the Court's legitimacy beyond any serious question.
Since when did the Court decide that not showing weakness was more important that following the law? Apparently when Justice O’Connor says so. And the people who say otherwise need to knuckle under! Some of us may remember movie scenes showing crooks bragging about a bought politician: “When he’s bought, he stays bought.” Since when did that become a canon of construction for judicial decisions?
And in dissent. . .
Writing for the four dissenters, Chief Justice Rehnquist came right to the point in his opening two sentences:
The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.
Chief Justice Rehnquist then returns to the existence of a “right of privacy”, which he previously challenged in Roe (citations omitted):
[In a 1937 case, w]e have held that a liberty interest protected under the Due Process Clause of the Fourteenth Amendment will be deemed fundamental if it is "implicit in the concept of ordered liberty." Three years earlier, we referred to a "principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." These expressions are admittedly not precise, but our decisions implementing this notion of "fundamental" rights do not afford any more elaborate basis on which to base such a classification.
In construing the phrase "liberty" incorporated in the Due Process Clause of the Fourteenth Amendment, we have recognized that its meaning extends beyond freedom from physical restraint. In [a 1925 case], we held that it included a parent's right to send a child to private school; in [a 1923 case], we held that it included a right to teach a foreign language in a parochial school. Building on these cases, we have held that the term "liberty" includes a right to marry, a right to procreate, and a right to use contraceptives. But a reading of these opinions makes clear that they do not endorse any all-encompassing "right of privacy."
In Roe v. Wade, the Court recognized a "guarantee of personal privacy" which "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier opinions upon which it based its decision much too broadly.
*. * *. *. *. *. *
The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.
Finally, Chief Justice Rehnquist notes the plurality’s strange interpretation of stare decisis:
The joint opinion [] cannot bring itself to say that Roe was correct as an original matter, but the authors are of the view that "the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding." Instead of claiming that Roe was correct as a matter of original constitutional interpretation, the opinion therefore contains an elaborate discussion of stare decisis. This discussion of the principle of stare decisis appears to be almost entirely dicta, because the joint opinion does not apply that principle in dealing with Roe. Roe decided that a woman had a fundamental right to an abortion. The joint opinion rejects that view. Roe decided that abortion regulations were to be subjected to "strict scrutiny" and could be justified only in the light of "compelling state interests." The joint opinion rejects that view. Roe analyzed abortion regulation under a rigid trimester framework, a framework which has guided this Court's decision-making for 19 years. The joint opinion rejects that framework.
Stare decisis is defined in Black's Law Dictionary as meaning "to abide by, or adhere to, decided cases." Whatever the "central holding" of Roe that is left after the joint opinion finishes dissecting it is surely not the result of that principle. While purporting to adhere to precedent, the joint opinion instead revises it. Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere façade to give the illusion of reality.
And yet, despite this, the fact that abortion survived meant, to the vast majority of Americans, that Roe survived, even though reduced to “a mere façade”. The case name Roe was seen as synonymous with a federal mandate of access to abortion, not to specific legal standards. In the political arena, Chief Justice Rehnquist’s dissent was almost ignored — making it clear that the decision is Casey was more about the political forces at work than about the law. From the majority’s preoccupation with Roe’s detractors needing to accept that the Supreme Court said that Roe (as altered) was the law of the land, the majority made it clear that Casey was making a political statement, not a legal one. And it was so treated by those who disagreed with it — even though that political statement survived for another 30 years.
Opposition to Casey broke into al least two groups: one that thought that the the Supreme Court should not be making political statements under the Constitution (the group to which I obviously belong), and then one (or perhaps more than one) group that may have sided with the Monty Python skit arguing that
Perhaps the Dugger family would have a different opinion on that, but I treat such views with the same solemnity and respect as the Pythons did.
In conclusion
Because we’ve already gone on so long, I’d like to wrap up here by talking about the actual Dobbs decision that overturned Roe, Doe, and Casey. So, a few wrap-up points:
Unenumerated rights were really intended to be protected from government interference under the Constitution. But the Supreme Court was set up to interpret the Constitution, not create new unenumerated rights. Sorry, Justice Brennan, but the old razzle dazzle wears off after a while, although it may take a few decades.
Justice Thomas’s concurrence in Dobbs argued that all Supreme Court cases depending on substantive due process should be overturned. In this series, I’ve definitely presented the argument that “substantive due process” was an aberration that grew out of Justice Taney’s racist views (including Dred Scott) and then came back to life due to the Supreme Court majority’s mistake in The Slaughter-House Cases. I can understand why Justice Thomas might want to eradicate “the fruit of the poisonous tree”. Yet why would the Court want to follow Justice Thomas’s path?
In fact, the majority opinion in Dobbs (by Justice Alito) specifically states that the majority has no desire to follow Justice Thomas’s attempts to review the last 150 years of Supreme Court jurisprudence on “substantive due process” or even to re-evaluate the doctrine. After all, substantive due process reaches the correct result of applying the 14th Amendment to the states, even if it is the wrong way to get there.
There really isn’t any reason to try judicial time-travel. Just as we can’t eradicate mistakes like Dred Scott or Plessy, we also can’t eradicate The Slaughter-House Cases except to note that it was wrongly decided. Perhaps going forward the Court might shift its basis for evaluation of unenumerated rights from the Due Process Clause of the 14th Amendment to the Privileges & Immunities Clause of the 14th Amendment, but a case that was decided correctly under substantive due process would still come out the same way under the Privileges & Immunities Clause. Except to Justice Thomas, the only real problem with “substantive due process” related to cases that were not decided correctly under substantive due process, such as Roe, Doe, and Casey (and probably Lochner and its ilk, but that’s water under the bridge, since they also have been reversed).
What should states do now with regard to abortion? My personal view is that states should adopt laws that reflect the views of their residents, and polling seems to indicate broad support for abortion to be legalized up to 15-20 weeks, as well as some support for later abortions in the case of serious birth defects. That isn’t all that far from the three-trimester approach that Justice Blackmun dreamed up for Roe, which might mean that Blackmun would have made a good legislator if he hadn’t pretended to be a judge. By the way, I also expect that legislators who decide to ban abortions earlier than that in their states will pay the price at the ballot box over the next couple of years.
One of the weirdest things (to me) is that most of the population in this country is unaffected by the demise of the Roe regime due to existing state laws, and yet people are reacting hysterically to stories that don’t actually affect them at all. I have no idea whether this comes from a failure of civics education or just general ignorance, but I suspect both. It seems as if there are a significant number of people in this country who are no longer happy with the idea that we have distinct states that can create their own laws; instead, they want to be “the boss”.
After all, this is a country who has just elected two presidents who modeled themselves respectively after P.T. Barnum (if you were to ask The Former Guy, he might point to his own election as proof of the theory that “there’s a sucker born every minute”) and Forrest Gump (I’m still waiting for Biden to tell the story about how he he was just a poor crippled boy in Mississippi when he taught Elvis to shake his hips, which would be consistent with his previous attempt to pass himself off as Neil Kinnock — and being president hasn’t made him any more truthful). And the president before those two likened himself to God, claiming that his election would mark “the moment when the rise of the oceans began to slow and our planet began to heal”; some of his more obsessed fans even dubbed him a “Lightworker, that rare kind of attuned being who . . . can actually help usher in a new way of being on the planet” (italics in original). Uh, not so much. But it’s hard for me to believe that any of those three charlatans would have been elected in a different era, and I hope it’s hard for you as well.
I still believe all of these frauds spent too much time listening to the song above:
Everyone's going to be free
But they have to agree to be free
They'll have to agree to be less free than me
'Cause I rule the world you seeHowever, I have to admit that The Former Guy made three of the best Supreme Court nominations in my lifetime with Justices Gorsuch, Kavanaugh, and Barrett, all of whom have excellent records as both judges and also as academics. Whenever you see some media dim bulb comment that one of them isn’t up to the job, you should react to the same way as you would to any other real-world incompetent (which I would hope is to ignore it, because, as the great playwright and poet Friedrich Schiller famously said, “Against stupidity, the gods themselves struggle in vain”).
It’s interesting to note the number of politicians as opposed to the number of sitting judges appointed to SCOTUS going back to the New Deal: FDR: 6 politicians (1 a former law professor, 1 not a lawyer), 1 law professor; Truman: 3 politicians; Eisenhower: 1 politician, 4 judges; Kennedy: 2 politicians; Johnson: 1 politician, 1 (former) judge; Nixon: 2 judges, 1 politician, 1 practicing lawyer; Ford: 1 judge; Reagan: 4 judges (counting Rehnquist, who was nominated for Chief); Bush 41: 2 judges; Clinton: 2 judges; Bush 43: 2 judges; Obama: 1 judge; 1 (former) law professor; Trump: 3 judges; Biden: 1 judge. The last president to nominate someone who wasn’t a judge or a law professor to SCOTUS was Nixon. Does anyone else think the decisions in Roe and Doe, which came out eighteen months before his resignation, might have been behind that change?
I’ll go into other issues from the current SCOTUS term shortly. Be seeing you.