Precedent won’t impede overturning Roe v. Wade

Stare decisis.

There’s a reason that Latin phrase and whether Supreme Court nominees agree with it is one of the first questions a U.S. senator will ask of any nominee to the U.S. Supreme Court.

“To stand by things decided.”

These days, when a senator asks the question, what he/she is really asking is whether the judge will overturn Roe v. Wade, the landmark Supreme Court ruling that the right to privacy protected a woman’s right to an abortion.

“Those who argue that stare decisis compels blind adherence to all prior precedents distort the doctrine,” Robert L. McFarland, an associate professor and associate dean at Faulkner University’s Thomas Goode Jones School of Law, wrote last year when Neil Gorsuch was being grilled on the subject by a U.S. Senate that had held the Supreme Court seat open for him.

No matter.

Today’s Supreme Court decision declaring that people who benefit from union bargaining shouldn’t have to pay for it required a belief that the court is not bound to stand by that which is already decided.

The decision today hinged on the court declaring that its previous decision on the question was a poor one.

“We recognize the importance of following precedent unless there are strong reasons for not doing so,” Justice Samuel Alito wrote on behalf of the majority in Wednesday’s opinion.

He and other conservative justices essentially struck down the 1977 Supreme Court ruling — Abood v. Detroit Board of Education — that upheld union fees. The nine justices at the time were unanimous in its interpretation.

In it, Justice Potter Stewart, an Eisenhower appointee, wrote:

[The] notion that an individual should be free to believe as he will, and that, in a free society, one’s beliefs should be shaped by his mind and his conscience, rather than coerced by the State … thus prohibit[s] the appellees from requiring any of the appellants to contribute to the support of an ideological cause he may oppose as a condition of holding a job as a public school teacher … the Constitution requires … that such [political union] expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.

Abood judged the constitutionality of public-sector agency fees under a deferential standard that finds no support in our free speech cases,” Justice Alito countered in today’s opinion.

If Abood had considered whether agency fees were actually needed to serve the asserted state interests, it might not have made the serious mistake of assuming that one of those interests — “labor peace” — demanded, not only that a single union be designated as the exclusive representative of all the employees in the relevant unit, but also that nonmembers be required to pay agency fees.

Deferring to a perceived legislative judgment, Abood failed to see that the designation of a union as exclusive representative and the imposition of agency fees are not inextricably linked.

This isn’t the first time by a long shot that the court has overruled itself — “separate but equal,” anyone? — and it seems likely the coming attempt to overturn Roe v. Wade will utilize some of the reason in today’s opinion. That, like the Detroit case, Roe was poorly constructed and, therefore, is not settled law.

As a judge on the Third Circuit Court of Appeals, Justice Alito voted in favor of a law that would have required wives to notify their husbands before getting an abortion.

The Supreme Court struck that down that provision in 1993 in a case (Planned Parenthood of Pennsylvania v. Casey) that had largely upheld other anti-abortion laws in Pennsylvania.

While upholding Roe v. Wade in the opinion, the majority also took it apart, enacting a “strict scrutiny” test for deciding whether a decision would interfere with a woman’s right to an abortion.

The union decision doesn’t clear a pathway for the overturning of Roe v. Wade. The court’s conservatives signaled long ago that they were open to the idea.

The union decision, instead, illustrates anew that the interpretations — real or imagined — of stare decisis won’t stop it.

Related: Justice Kennedy retiring; Trump gets 2nd Supreme Court pick (NPR)

  • JamieHX

    >> …when Neil Gorsuch was being grilled on the subject by a U.S. Senate that had held the Supreme Court seat open for him. <<
    This SHOULD say: "…a U.S. Senate that had STOLEN the Supreme Court seat for him."

    • Gary F

      If the media had not given Trump all the free media time during the election, this wouldn’t have been a problem. And maybe if the DNC wouldn’t have screwed Sanders.

      • That reminds me of Trump’s response to ethical breaches when they were raised at one of the debates. “Well YOU didn’t stop me.”

        • Postal Customer

          Hillary had no good answer for that.

      • Jerry

        So it’s everybody’s fault except for the people who actually voted for him?

        • Gary F

          No, its just funny how the Dems have been in vapors for the last year and a half. Trump is an idiot, that’s why all the late night TV shows, the CNN’s and MSNBC’s gave him all this free time and continually talked about him. Hillary sat back and didn’t even try hard in Wisconsin because her coronation was certain. The blaming of Russia when all they really need to do is blame themselves. I know a lot of people who voted for Trump just to spite the media and many because they despise Hillary.

          But keep it up. Keep kicking Republicans out of restaurants, keep acting like Laurence Wayne Key, wear your Trump Derangement Syndrome on your sleeve.

          Judge Kennedy just retired. I’ve hear Clarence Thomas is next to retire. And Bader-Ginsber and Breyer, who I hope live a long and wonderful life, aren’t buying the green bananas anymore.

          Keep listening to Maxine Waters advice. America is watching.

          • Kick out of restaurants. Check.
            Acting like Laurence Wayne Key. Check.

            Oh, here’s one I’m not sure what I’m supposed to do with: “Hold white supremacist rallies and argue that they’re good people.” Where are we with that one. I want to make sure the checklist is up to date.

          • lindblomeagles

            Gary, none of the reasons given here should persuade anybody really to vote for a government official. When we walk into the polling place, the hope is you are interested in voting for somebody who will do some good for the country. That somebody, like Hillary Clinton, might not be the most lovable person around. That person might be the media’s darling. What should matter is does the person you elect have the country’s priorities at the top of his OR her list? Will EVERYBODY in America benefit from this candidate I’m pulling the lever for? All this other stuff usually leads to voting for “the idiot” you describe above.

          • Gary F

            America was forced to vote for the lesser of two evils. The two worst candidates that ever ran. One had it in the bag, and blew it.

          • Yo. Nixon once ran.

            Tens of thousands of young Americans died — not to mention tens of thousands more vietnamese people — because he treacherously torpedoed a peace deal LBJ had negotiated in order to enhance his election prospects.

            Let’s not get carried away quite yet.

          • Jerry

            In Nixon’s defense, he tried to subvert democracy and break international law because he thought what was good for Nixon was good for America. Trump and his cronies seem only interested in personal profit. Nixon was corrupt, but in his own mind patriotic.

          • Again, tens of thousands of kids died and he was a despicable and corrupt man and I don’t care what was in his mind in terms of rating the worst presidential candidates of all time.

          • Jerry

            It’s the villains who think they are the heroes who are the most dangerous.

          • JamieHX

            Hillary was not one of the worst candidates. She was one of the best. More experience than most, and more concern for what’s good for the country than most. You only think she was one of the worst because of the constant lying and tarring-&-feathering by Republican haters over the last quarter century, and by the complicit, chasing-a-buck news media. And thanks to mal-informed, Republican-Kool-Ade-swallowing Sanders supporters and other low-information Democratic-leaning voters in 2016, she didn’t get as much support from the left as she should have, including in WI, MI, and PA.

          • Jerry

            Why are conservatives so fragile? I can only assume it was because they are having flashbacks to high school, where the Young Republicans were never invited to the cool parties.

          • Jerry

            Conservatives like to call liberals wimps, until they actually stand up for themselves, when they are suddenly thugs.

          • Jeff

            Trump is a master at keeping all the attention on himself and pushing the Democrat’s buttons. Being not burdened by facts he can say anything he wants to provoke and all we do is bluster. Meanwhile he is setting the agenda.

          • Chris

            It’s not funny at all. We are at a time when republicans have only won the popular vote once in the last 7 or 8 presidential elections despite holding the office 3 times over that span. Thanks to gerrymandering, democrats typically win more votes in aggregate for the house but hold fewer seats, to say nothing of how undemocratic the senate is. And now thanks to a stolen supreme court seat, right wing republicans will hold that power for many many years to come. And yet it is the republicans, Trump voters, who continually rise to a hysteric level, yelling at the media at Trump rallies, saying the Mueller investigation must end before it tears the country apart, frequently whispering about civil war or second amendment remedies. And when Sarah Sanders can’t get a meal we are reflecting on civility. There is no shame, no hypocrisy too low to stop at apparently. I hope you reflect on the damage your party has brought on the country.

      • Chris

        Trump has 90% approval within the republican party. Granted that is far from a majority of the country as a whole. But republicans mainly love his racist nativist schtick. The media is far from perfect in its coverage (see NYT cover 10/29/16), but republican voters deserve more blame.

      • kevins

        Oh please Gary…Trump lost the popular vote.

        • L. Foonimin

          Oh wait, did HRC and the Democratic Party not realize the Electoral College was the only system in place in 2016 and therefore should have worked very hard to make sure they were competitive in the whole country …

          • kevins

            See above.

        • Gary F

          That’s not how the game is played. So have fun with that.

          • kevins

            That isn’t the point Gary. If it was the media’s fault what with all that free stuff, wouldn’t Trumpsky have won the popular vote?

          • Postal Customer

            Maybe next time the Democrats won’t run such a terrible candidate. Luckily, 2020 does not seem to have any “I deserve it” candidates (yet).

      • Postal Customer

        CNN gave him something like $50m in free advertising. The media couldn’t get enough of him.

      • JamieHX

        The DNC did not screw Sanders. He knew the rules when he, a non-Democrat, decided to USE the DNC.

        • Yep. Sanders didn’t win enough delegates, “Super” or not.

          /Caucused for Sanders in MN. Voted for HRC (because I don’t like fascists)

    • Jeff

      At some point we got to thank the Republicans for demonstrating how deeply flawed our system of government is and why no other country has one like it. It depends on both sides acting in good faith for the good of the country to get things done. There is nothing to prevent the majority party from not giving a hearing to a President’s judicial nominees or voting on it for that matter. There is nothing that prevents the Legislature from not providing checks on the Executive branch. And of course we have the Electoral College which got us a couple of minority-elected Presidents lately.

      • JamieHX

        I won’t be thanking the Republicans anytime soon. And I’m afraid that we are past the point of recovering from this hell. So even if we are learning lessons from this, it won’t do us any good.

  • Mike Worcester

    Plessy v Ferguson –> Brown v Board of Education
    Bowers v Hardwick –> Lawrence v Texas
    Minersville v Gobitis (sic) –> West Virginia v Barnette
    Wolf v Colorado –> Mapp v Ohio

    Just a couple of examples of SCOTUS decisions over-ruled by later courts.

    • Plessy v. Ferguson was one of the links above

      • Jay T. Berken

        And now, with Kennedy retiring, Trump has a chance to nominate a more conservative justice.

        • JamieHX

          We are all seriously doomed.

      • Mike Worcester

        Saw that. It’s one of my top examples I use when explaining how court decisions are not set in the proverbial stone.

  • Gary F

    So that means Heller and MacDonald will some day be overturned?

    • Mike Worcester

      In theory any court decision can be overturned if the right case and the right court composition exists.

  • chlost

    “Activist Judges” has been the loud complaint of the conservatives for the past 10 years. Until they get a majority on the Court. Then…..

    • Jerry

      Kind of like “State’s Rights” and “Local Control”

  • Chris

    I wish we could all acknowledge that conservatives are nothing of the kind. Granting them the title conservative is playing their game. They are radical destructivists and are succeeding in destroying the norms or our stable society. They have no interest in conserving anything but the money of the 1%.

    • lindblomeagles

      You’re right about that Chris, which is why we all should have said no to Neil Gorsuch, the largest supporter on the Supreme Court of the 1%.

      • Jeff

        How do we say no? There is no longer a way to say no after McConnell went nuclear.

  • kat

    I think many women are very aware of how easy it would be for the court to overturn Roe. People against women’s health have been plotting strategy for decades now, pointing out weaknesses in the ruling itself and promoting the general idea that the court can do what it wants. Your headline is very true, but not unique to this court or the court to come.

  • lindblomeagles

    None of this should surprise any of us. The cold, hard, facts are the media went WAY BEYOND THE CALL OF DUTY in informing the public who was being nominated to the bench by George W. Bush and Donald Trump. We KNEW who Samuel Alito was — an opponent of civil rights. We KNEW who Gorsuch was — an opponent of workers’ rights. For those of us who actually follow politics, the media listed some of the decisions these two men made as judges from the West. There was a reason why the African American community often referred to Judge Clarence Thomas as Uncle Tom when he was appointed. And the same is true, frankly, of Donald Trump. While the media stopped short of calling Trump a lying racist prick, they didn’t hide who Trump was in his run up to the 2016 election. WE, DA PEOPLE, did this to ourselves, as a lot of American workers are about to find out when Trump’s Trade War takes effect next year in mostly middle, WHITE, America.

    • Only 61.4% of eligible voters went to the polls in 2016.

      Remember that NYT piece on Milwaukee voters?

      “I felt cornered,” said Ian Pfeiffer, 25, who works the grill at Jake’s Delicatessen and says he did not vote. “We were stuck between Trump and Hillary. They really left us with no choice.”

      Then you have Democratic candidates that couldn’t muster up the courage to defend health care. And weren’t that interested in making a Supreme Court seat an issue.

      But, yeah, that damn media.

      • Postal Customer

        The media was absolutely complicit. Not totally at fault, but complicit.

    • JamieHX

      I am part of “We, the people…” and I did NOT “do this to ourselves.” Please don’t make such broad pronouncements.

  • Barton

    This whole week in SCOTUS communications has just made me sick to my stomach…. I keep hearing the Borg in my mind with every new headline: Resistance Is Futile.

    • The Resistance

      I am not futile! 😉

      As depressing as this week has been, now is the time to become even more active to preserve American liberal democracy before it is gone. Defend the institution.

      Perhaps the most important thing any of us can do know is ignore the calendar and request your primary and general election ballots today. You’ll have the luxury of exercising your right to vote at your kitchen table, time to research the obscure candidates and offices, and avoid lines on election day. And if you have an emergency on election day, your vote will still be counted.

      Do it here. And do it now.

      • Jeff

        Is this like the Twins still have a chance to win the World Series? Do I still get a sticker?

  • Chris

    I do hope McConnell honors the principal he established with the Merrick Garland nomination when he said that the American people deserve a voice in the process, by not holding hearings until after the November election….curious to hear from some republicans on that…

  • Kellpa07

    Everybody loves stare decisis until there’s an opportunity to overrule a case they don’t like. Let’s not pretend any side has the high ground on this.