ATLANTA -- Merrick Garland. Do you remember him? On March 16, 2016, President Barack Obama nominated him for the U.S. Supreme Court to fill the seat that was created by the passing of Justice Antonin Scalia. Justice Scalia’s death resulted in an eight-member court that was evenly split between liberal and conservative justices. Garland’s addition to the court — presuming he would be liberal since he earned President Obama’s support — would have tipped the court’s ideological scale.
Republicans were not having that. In an unprecedented move, they immediately declared they would take no action on Garland’s nomination as it was a presidential election year. Senate Majority Leader Mitch McConnell said, “The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction ….”
The people, or more accurately, the Electoral College, spoke, and elected Donald Trump as the 45th president. On Jan. 31, 2017, just 11 days after he was sworn in, President Trump nominated Neil Gorsuch, a judge on the 10th U.S. Circuit Court of Appeals, to fill Justice Scalia’s seat. Gorsuch was seen as a conservative jurist in the vein of Justice Scalia.
As the ideological tilt of the court was hanging in the balance, Democrats fought. Their fervor was intensified by what was done to Merrick Garland. They tried to block Gorsuch’s nomination with a procedural filibuster. Republicans responded by changing the Senate rules to allow Supreme Court nominees to be confirmed with a simple 51-vote majority instead of the previous 60-vote threshold. Republicans controlled the Senate, so the die was cast.
Sen. McConnell said shortly before the confirmation vote, “As I look back on my career, I think the most consequential decision I’ve ever been involved in was the decision to let the president being elected last year pick the Supreme Court nominee.” Gorsuch was confirmed. The scale was tipped in conservatives’ favor.
Still smarting from that loss, Democrats got hit again. Justice Anthony Kennedy announced his retirement on June 27, 2018. He was often called the “swing vote” because he would side with liberal justices on certain issues like abortion and same-sex marriage. This gave President Trump another opportunity to further tilt the court in conservatives’ favor by replacing a “swing vote” with a decidedly conservative vote. He nominated D.C. Circuit Appellate Judge Brett Kavanaugh. We all know how those confirmation hearings went. Judge Kavanaugh was confirmed by a Republican Senate. The scale tipped further.
The death knell for Democrats’ hopes at the Supreme Court came in 2020. On Sept. 18 of that year, liberal judicial icon Justice Ruth Bader Ginsburg passed away. This gave President Trump the chance to establish a solid 6-3 conservative majority on the court. On Sept. 26, 2020, he nominated 7th U.S. Circuit Appellate Judge Amy Coney Barrett. Judge Barrett — like Justice Gorsuch — had a conservative legal approach similar to Justice Scalia’s, going so far as saying, “his judicial philosophy is mine, too.” Though it was a presidential election year, and Election Day was only 38 days away when Barrett was nominated, a Republican Senate pushed her confirmation through. Some legal experts said at the time that the court would now be the most conservative Supreme Court since before World War II.
You’ve got to hand it to them. Republicans had a goal and they achieved it. They wanted to turn the Supreme Court conservative. They did that. And with Justice Ginsburg’s passing and subsequent replacement with her ideological opposite, Justice Barrett, the court is more firmly conservative than they may have previously hoped.
Stare decisis is a Latin term you may have heard recently. It is a legal doctrine which says that courts should stick to their previous decisions when making new decisions. In other words, today’s court should stand by yesterday’s decisions. The Supreme Court has said that the doctrine “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. ... Adhering to precedent ‘is usually the wise policy because, in most matters, it is more important that the applicable rule of law be settled than it be settled right.’”
In the landmark case of Roe v. Wade, the Supreme Court held that women have a constitutional right to choose to have an abortion, without excessive government intervention. That decision was made in 1973. For almost 50 years now, women had a right under the U.S. Constitution to choose. They relied on that decision. The law was settled.
It’s not settled anymore. Last week, Politico obtained an initial draft majority opinion which overruled the Roe decision. Though it is a draft, meaning that the underlying legal reasoning may change, the end result will not. At some point in the near future, women will no longer have a constitutional right to choose to have an abortion.
If you are anti-abortion, you probably greeted this news with glee. This is something you have been dreaming about. You have been fighting for it. I get that. However, I just want you to pause your celebration for a minute to think about what is about to happen. As of July 2019, more than half of the U.S. population is under the age of 40. That means that more than half of the U.S. population has only known a country in which women have the constitutional right to choose to have an abortion. Now, as a result of the aforementioned political maneuvering, we have a Supreme Court which is prepared to take that right away.
What does that mean for stare decisis? To be fair, it is not a hard and fast rule. The Supreme Court has overruled past decisions before. A prominent example is Brown v. Board of Education, in which the court overruled its decision in Plessy v. Ferguson, where it said “separate but equal” facilities based on race were constitutional.
The court can, and does, overrule its prior decisions sometimes. But in those cases, the court is generally deciding whether or not some law or regulation violates a provision of the Constitution. For example, in Brown, the court decided that separate but equal facilities violated the Equal Protection Clause of the 14th Amendment. Whereas previously, the court held that they did not.
Here, the court is preparing to do something markedly different. True, in Roe, the court held that state criminal abortion laws violated the Due Process Clause of the 14th Amendment. But in coming to that decision, they determined that the 14th Amendment protected the right to privacy, which includes a woman’s right to choose to have an abortion. In other words, they held that the Constitution gave women a right to choose. Now, they seem prepared to say to women, “Actually, no it doesn’t,” and take that right away. That feels hugely different to me.
You wouldn’t trust a person who told you one thing one day, then said the opposite the next day, right? We generally call those people liars. Two-faced. Duplicitous. Snakes.
The Supreme Court told women, really it told all of us, one thing in 1973. Now in 2022, they are prepared to tell us the opposite. What should we call them? Those who support this reversal may call them heroes. Patriots, even. But that’s only 32% of Americans. What about the 58% of Americans who oppose overturning Roe?
To be clear, judicial decisions should not be made based on public opinion. They should be based on the law and legal principles. Public opinion can easily sway back and forth, whereas the law, at least in theory, does not. It should not. It should be consistent. Predictable. Reliable. Stare decisis.
I’m not trying to be Chicken Little, but the consequences of overturning Roe could be dire. It would most certainly be for the millions of women living in states which are hellbent on outlawing abortions. But it might also be dire for the integrity of the judiciary.
Judges at every level vehemently profess that they are above politics. The law is their guide. But the Roe decision will be overturned, and while the court’s reasons for doing so will cite a lot of law, the history that I began this column with makes it abundantly clear how the court got to its decision. We can summarize it in one word: Politics.
Eric Foster, a community member of the editorial board, is a columnist for The Plain Dealer and cleveland.com. Foster is a lawyer in private practice. The views expressed are his own.
To reach Eric Foster: ericfosterpd@gmail.com
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