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.”

Associated Press

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)