In dropping Roe, Alito cites civil rights, minimum wage cases. Be afraid, says the dissent.


Abortion rights protesters protest outside the United States Supreme Court as the court rules in the abortion case Dobbs v Women’s Health Organization, overturning the landmark Roe v Wade abortion decision in Washington, USA United, June 24, 2022. REUTERS / Evelyn Hockstein

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(Reuters) – The U.S. Supreme Court’s landmark decision on Friday Dobbs v. Jackson Women’s Health Organization the beginning of the end of deference to established precedent?

Certainly not in the opinion of the five judges who signed the majority opinion annulling Roe vs. Wadethe 49-year-old case that secured a constitutional right to abortion, and Family planning c. Casey, the 1992 decision that upheld Roe’s constitutional finding. Justice Samuel Alito, who wrote the court’s opinion, cited dozens of examples of cases in which the Supreme Court has ruled its previous rulings were so “patently wrong” that they should be overturned.

Alito crammed most of the quotes into a very long footnote, but he devoted longer discussion to three other cases in which the court abandoned controversial precedent. He seems to have chosen his examples carefully, as hardly anyone would dispute the outcome of the cases presented.

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In one of Alito’s examples, the landmark 1954 decision in Brown v. Board of Education, the Supreme Court struck down the “separate but equal” doctrine of segregation it had adopted in 1896 in Plessy v. Ferguson. In West Coast Hotel Co. v. Parrish, beginning in 1937, the court struck down a long line of rulings that prevented states from enacting health and welfare protections, like minimum wage laws, for workers. And 1943 West Virginia State Board of Education v. Barnette reinstated students’ First Amendment right to avoid saluting the American flag, just three years after the Supreme Court ruled otherwise.

These cases, Alito wrote, demonstrate why the Supreme Court must be willing to set aside the principle of stare decisis, or respect for precedent, to correct its worst errors.

“Some of our most important constitutional decisions overturned previous precedents,” the majority decision said. “Without these rulings, American constitutional law as we know it would be unrecognizable, and it would be a different country.”

The Supreme Court has overturned cases before even when the justices’ rulings have dramatically upended the expectations of those who relied on established precedents, Justice Brett Kavanaugh said in an agreement. Looking back to the cases Alito referenced, Kavanaugh said that businesses believed in front of West Coast Hotel that the Supreme Court insulated them from regulation, and that Southern states believed entrenched segregation was constitutional until Brown v. Board of Education. These examples, Kavanaugh said, undermine arguments that “broad notions of societal trust” should have prevented the Supreme Court from overturning Roe and Casey.

But if Alito, Kavanaugh and the other three justices who joined the majority opinion thought they would somehow assuage the critics by citing civil rights and worker protection cases as justification for disregarding stare decisis, they were completely wrong.

The four justices who disagreed with the majority opinion all said Alito and his colleagues misinterpreted the principles underlying the Supreme Court’s decisions in the three precedent-breaking cases discussed in the text of the law. majority opinion. And the consequence of this misreading, according to the justices who did not join the majority opinion, could be disastrous for the Supreme Court.

Chief Justice John Roberts, who endorsed the judgment upholding the Mississippi abortion ban after 15 weeks but specifically repudiated the majority overturning of Roe v. Wade and Planned Parenthood v. Casey said stare decisis advises restraint, but the majority chose instead to deliver “a serious shock to the justice system.”

None of the three cases cited by Alito to defend the departure of the majority from stare decisis actually justifies the majority’s determination to overthrow Roe and Casey, Roberts wrote. Brown v. Board of Education reflected the clear and unanimous view of the Supreme Court that segregation was unconstitutional. Barnette corrected a short-lived error when three judges realized their original ruling was wrong. And West Coast Hotel, Roberts said, “was released against a backdrop of unprecedented economic desperation that drew attention to the fundamental flaws of the existing precedent.” The new Dobbs ruling, Roberts said, doesn’t fit any of those patterns.

In a sad joint dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor predicted that in rejecting Roe and Casey, the majority was aiming “a loaded gun” against the Supreme Court’s institutional legitimacy – destroying the reasoning behind Roe and Casey’s previous rejection. the court in the 1993 Casey Decision to overturn Roe.

When the court made the serious decision to overturn constitutional precedent, as in the Alito cases discussed in the majority opinion, the judges acted in response “to a change in law and a change in facts and attitudes who [have] has taken hold throughout society,” the dissent said. By contrast, the dissenting justices wrote, abortion remains as turbulent an issue as ever. This stark fact, wrote Breyer, Kagan and Sotomayor, should have reinforced the court’s commitment to defer to precedent rather than spurred the majority to abandon stare decisis in order to remove a long-standing constitutional right.

Dissenters say the majority’s new take on the doctrine is a “radical” power play. “The majority rejected Roe and Casey for one and only one reason: because they always looked down on them, and now they have the votes to reject them,” the dissent said. “The majority thus substitutes a rule of judges for the rule of law.”

Breyer, Kagan and Sotomayor predicted that the decision will pave the way for the revocation of other established constitutional rights, “from contraception to same-sex intimacy and marriage,” at the expense of the court’s authority. (The dissent does not mention Gallup last poll on public confidence in the Supreme Court, but the court’s historically dismal 25% approval rating suggests it doesn’t have much legitimacy to spare.)

“The weakening of stare decisis threatens to upend fundamental legal doctrines, far beyond any single decision,” the dissenters said. (I raised similar concerns when Alito’s draft opinion was leaked last month, but the sentiment is far more significant when it comes from dissenting justices.) “The weakening of stare decisis creates a deep legal instability. And as Casey acknowledged, the weakening of stare decisis in a highly controversial case such as this calls into question this court’s commitment to legal principle. It gives the impression that the court is not restrained but aggressive, not modest but captivating.

These are dark words for a dark day.

Read more:

U.S. Supreme Court strikes down landmark abortion rights Roe v. wade

With the Supreme Court poised to drop Roe, does precedent matter more?

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