Precedent Schmecedent

The confirmation hearings for Judge Alito to the U.S. Supreme Court are beginning. If you have followed the press in recent months, you have seen that at least three-quarters of the comments have focused on Alito’s position on abortion. Both sides in the fight feel that he might be the deciding vote that could overturn Roe v. Wade. So opponents are demanding that he either say that he will vote to overturn Roe so they can torpedo the nomination, or commit to upholding Roe. If that sounds extreme, let me remind you that Roe was the one issue that brought down the eminently qualified Judge Robert Bork. Why such an obsession with Roe v. Wade? The answer is that this is the underlying precedent relied on in all of the major social issue battles since 1973. The principle set forth in that decision—individual autonomy over not only one’s body but also the meaning of life itself—is the foundation for “gay” rights and same-sex “marriage” today. If the defenders of Roe can’t get an answer from Alito—and it would be unethical for a judge to say how he would decide on any case—you can expect them to concentrate on the question of a judge’s respect for precedent. That is just another way to get to the question. But there is some validity to it. What lawyers call stare decisis means in Latin “let the decision stand,” and it serves an important function, providing the law with stability and predictability, which in turn allows people to know how to order their lives. But the Roe decision has never enjoyed widespread acceptance. On the contrary, the passage of time has only increased the conviction that Roe was wrongly decided. Even the Supreme Court acknowledged this in its Casey decision when it spoke of affirming the “central holding” of Roe, that is, the result of Roe—instead of Roe itself. Then, as now, the best case that could be made was “respect for precedent”: Roe had been on the books for a long time, so women had come to “rely” on the availability of legalized abortion. But stare decisis is a matter of prudence, not bedrock principle. As even liberal columnist Michael Kinsley recently pointed out, liberals did not “express any alarm about the danger of overturning precedents” when the Court reversed itself on the issue of gay rights in the Lawrence case. The earlier decision, Bowers, was as old as Roe was at the time of the Casey decision. And when the Brown decision outlawed school segregation, “the separate but equal” standard that had been the law of the land for twice as long as Roe had been on the books, the Supreme Court rightly reversed it—it was a bad precedent. As it has throughout its misbegotten existence, Roe is the beneficiary of a thinly disguised double standard. If the subject were anything other than abortion, there would be little talk of respecting precedent. On the contrary, the Court would be urged to revisit a wrongly decided case that had caused great harm. It is scandalous that Roe’s defenders would seek to hold a Supreme Court nominee hostage, demanding that he assure them how he would decide a case, even before that case is before him. But make no mistake, as you hear all the chatter and listen to the talking heads pontificating: That is precisely what is at issue. And it is a power grab by abortion defenders, in an attempt to sustain bad law.

01/9/06