In getting rid of Roe, Alito cites civil rights, minimum wage cases. Be afraid, says the dissidence.

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

(Reuters) – Is the U.S. Supreme Court’s ruling on Friday in 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 justices who signed the majority opinion overturning Roe vs. Wadethe 49-year-old case that secured a constitutional right to abortion, and Planned Parenthood vs. 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 decided that its previous decisions were so “grossly wrong” that they had to be undone.

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

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

These cases, Alito wrote, demonstrate why the Supreme Court has to be willing to set aside the principle of stare decisis, or deference to precedent, to correct its worst mistakes.

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

The Supreme Court has thrown out cases before, even as the justices’ decisions dramatically changed the expectations of those who relied on established precedent, Justice Brett Kavanaugh said at an arraignment. Looking back at the cases discussed by Alito, Kavanaugh said the companies believed before West Coast Hotel that the Supreme Court had insulated them from regulation, and southern states believed entrenched segregation was constitutional until Brown v. Board of Education. Those examples, Kavanaugh said, undermine arguments that “broad notions of social 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 placate critics by invoking civil rights and worker protection cases to justify contempt of the fixed decision, they were dead wrong. .

The four justices who did not join the majority opinion said that Alito and his colleagues had misunderstood the principles underlying the Supreme Court’s rulings in the three precedent-breaking cases discussed in the text of the majority opinion. And the consequence of that misreading, according to the justices who did not join the majority opinion, could be disastrous for the Supreme Court.

Chief Justice John Roberts, who agreed with the ruling to uphold Mississippi’s 15-week abortion ban, but specifically rejected the majority’s overturning of Roe v. Wade and Planned Parenthood v. Casey said the fixed decision advised restraint, but the majority chose to comply “a serious shock to the legal system.”

None of the three cases Alito cited to defend the majority’s departure from stare decisis actually justify the majority’s determination to unseat Roe and Casey, Roberts wrote. Brown v. The Board of Education reflected the clear and unanimous opinion of the Supreme Court that segregation was unconstitutional. Barnette corrected a short-lived error when three judges realized their original ruling was incorrect. And West Coast Hotel, Roberts said, “was issued against a backdrop of unprecedented economic desperation that focused attention on the fundamental flaws in existing precedent.” Dobbs’ new decision, Roberts said, fits neither of those models.

In a sad joint dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor predicted that by dismissing Roe and Casey, the majority was pointing a “loaded gun” at the institutional legitimacy of the Supreme Court, shattering the reasoning for the denial. The court’s earlier decision, in the 1993 Casey Decision, to overturn Roe.

When the court has taken the serious step of overturning constitutional precedent, as in the cases discussed by Alito in the majority opinion, the judges have acted in response “to the change in law and the change in facts and attitudes that [have] ingrained throughout society,” the dissident said. To the contrary, the dissenting justices wrote, abortion remains as turbulent an issue as ever. That hard fact, Breyer, Kagan and Sotomayor wrote, should have deepened the court’s commitment to bow to precedent rather than prompt the majority to abandon stare decisis to strip a longstanding constitutional right.

The new view of most doctrine, the dissenters said, is a “radical” power play. “The majority overruled Roe and Casey for one reason and one reason only: because it has always despised them and now has the votes to dismiss them,” the dissent said. “The majority thus substitutes the rule of law for a government of the judges.”

Breyer, Kagan and Sotomayor predicted that this decision will pave the way for the repeal of other established constitutional rights, “from contraception to intimacy to same-sex marriage,” at the expense of the court’s authority. (The dissent does not mention the Gallup latest polls 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 the fixed decision threatens to overthrow fundamental legal doctrines, far beyond any individual decision,” the dissenters said. (I expressed similar concerns when Alito’s draft opinion was leaked last month, but the sentiment is much more significant when it comes to dissenting judges.) “The weakening of stare decisis creates profound legal instability. And as Casey acknowledged, the weakening of stare decisis in a case as contested as this calls into question this court’s commitment to legal principle. It makes the court appear not restrained but aggressive, not modest but greedy.”

Those are gloomy words for a gloomy day.

Read more:

US Supreme Court strikes down abortion rights landmark Roe v. Wade

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

Our standards: The Thomson Reuters Trust Principles.

The opinions expressed are those of the author. They do not reflect the views of Reuters News, which, according to the Trust Principles, is committed to integrity, independence and freedom from bias.