Noah Feldman
Why Precedent Won’t Protect ‘Roe’
1.
At the Supreme Court, precedent is the topic of the day. The reason isn’t obscure. With the retirement of Justice Anthony Kennedy two years ago, the prospect of the Court overturning the 1973 Roe v. Wade decision is imminent in a way it has not been since 1992, when Kennedy jointly wrote an opinion with Justices Sandra Day O’Connor and David Souter that preserved the core of Roe while subtly transforming it. That opinion, in Planned Parenthood v. Casey, depended explicitly on stare decisis, the common-law doctrine of precedent that exercises such pull in the realm of US constitutional law. The aspirationally aphoristic first sentence of the opinion read, “Liberty finds no refuge in a jurisprudence of doubt.” Today, doubt about the Roe precedent is on the prowl, and reproductive liberty finds itself very much in search of a refuge. In an April decision in a case having nothing to do with abortion (at least on the surface), Justice Brett Kavanaugh, Kennedy’s replacement, published an eighteen-page solo concurrence laying out his vision for when the Supreme Court should overturn precedent.1 This remarkable document included a comprehensive list of what Kavanaugh called “some of the court’s most notable and consequential decisions”—all of which “entailed overruling precedent.” The list included such highlights as Brown v. Board of Education, which rejected racial segregation in public schools by declaring “separate but equal” facilities unconstitutional; Brandenburg v. Ohio, which extended free-speech norms well beyond the old “clear and present danger” rule; Lawrence v. Texas, which overturned previously constitutional laws against gay sex; and Obergefell v. Hodges, which enshrined same-sex marriage as a fundamental right. It is hard to read Kavanaugh’s opinion as anything other than a trial balloon for an opinion overturning Roe. Kavanaugh’s willingness to flip the switch will be tested when the Court
1Ramos v. Louisiana, April 20, 2020. decides this term whether to overturn a Louisiana law that requires abortion providers to have admitting privileges at surgical centers in proximity to their clinics. In 2016 the Court rejected an identical Texas law, with Kennedy providing the decisive fifth vote. The precedent is fresh and therefore vulnerable to the objection that it hasn’t yet set expectations. At the same time, overturning it would be an open admission that precedent cannot easily survive a change in the Court’s composition.
For liberals, the doctrine of precedent poses something of a conundrum in the current moment, when the threat to women’s reproductive rights is more immediate and pressing than it has been in at least a generation, and Donald Trump’s Supreme Court appointees seem poised to overturn established law. On the one hand, precedent presents itself as the best argument available for liberals to make the case to judicial conservatives that they should not roll back well-established basic rights enshrined in existing constitutional law. The core argument—embraced by Kennedy, O’Connor, and Souter the last time Roe was threatened—is that, even if conservatives disagree with the original decision, they should nevertheless decline to overturn precedent. And the notion of precedent resonates, or ought to, with a traditional conception of Burkean conservatism, in which rapid or radical change is to be avoided to protect settled societal expectations and preserve social peace.
On the other hand, as Kavanaugh’s examples were intended to emphasize, liberals have cared little for the value of precedent when it comes to the high-profile moral issues that have mattered most to them since World War II. From desegregation to free expression to gay rights, liberals have sought, welcomed, and embraced activist judicial decisions in the constitutional sphere that flipped established precedent on its head. Most of the time, liberals have justified these deviations from precedent on the ground that the original decision was immoral when it was made. This kind of argument is easily adopted by contemporary judicial conservatives, who consider Roe v. Wade wrong not only as a matter of constitutional philosophy but as a matter of morals. What’s more, today’s judicial conservatives increasingly are not Burkeans at all, but exponents of a strand of constitutional originalism that favors overthrowing precedent in favor of the long-neglected “true” meaning of the Constitution.
Abortion rights are only the most salient example of an area in which a conservative majority of the Court could roll back fundamental rights. Liberals therefore need to take a fresh look at precedent to figure out what they really think about it before making it the basis of their arguments against conservative activism. In practice, it is certainly worthwhile for liberals to argue from precedent if they believe that it will affect outcomes. But that argument is only likely to carry weight if it is made plausibly and consistently—and if it does not look like opportunism when considered in the light of the many famous liberal decisions that treat precedent with scant respect.
2.
Traditionally, legal discussion of the doctrine of precedent has come in two varieties: explanations for why stare decisis exists, and justifications for when it’s appropriate to break it. In principle, these two topics ought to be interwoven: a comprehensive theory of a custom should logically include an account of when that custom doesn’t apply. In practice, however, the judicial Sitz-im-Leben (setting in life) of most discussions of precedent has led to the bifurcation of these topics. Judges speak in praise of stare decisis when they want to uphold precedent. They speak about the limits of precedent when they want to make new law.
The words stare decisis literally mean “to let stand the decision.” It’s uncertain exactly when this law-Latin phrase came to represent the idea of precedent; it may have been as late as the turn of the eighteenth century. Regardless, the notion of legal precedent at work in contemporary US constitutional law isn’t Roman in origin. Rather, it derives from the English common-law tradition, which the British colonies in North America inherited and then consciously readopted at independence.
In its early modern form, the English common-law system differed markedly from a statute-based system: the authority of the law was not said to derive from the power of the legislature but from its already being the law of the people from time immemorial. In the classic common-law system, judges