When a popularly accepted injustice becomes entrenched, it is an almost irresistible temptation for Supreme Court justices to argue that it must be left in place because too many people have come to rely on it.
Regrettably, President Joe Biden’s Supreme Court nominee, Judge Ketanji Brown Jackson, has reaffirmed the reliance argument as an excuse to keep in place fabricated “abortion rights.”
During a Senate Judiciary Committee hearing on Tuesday, Jackson said that the right to abortion was settled by the Supreme Court in the landmark cases Roe v. Wade and Planned Parenthood v. Casey. She opined:
“Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman’s pregnancy. … Roe and Casey … have been reaffirmed by the court and have been relied upon, and reliance is one of the factors that the court considers when it seeks to revisit or when it’s asked to revisit a precedent.”
Perhaps Jackson needs to be reminded that ownership of slaves was once “settled law.”
Ironically, the reliance argument was one of the most powerful instruments used to keep the pro-segregation Supreme Court decision Plessy v. Ferguson in place for 58 years.
In oral argument for Dobbs v. Jackson Women’s Health Organization in December, Justice Samuel Alito identified a clear distinction between “reasonable reliance” and “improper reliance.” He made it clear that improper reliance is no barrier to unsettling settled law when that settled law is egregiously wrong.
“There was a lot of reliance on Plessy. The South built up a whole society based on the idea of white supremacy. So there was a lot of reliance. It was improper reliance. It was reliance on an egregiously wrong understanding of what equal protection means.”
Alito went on to ask the pertinent question: “Can a decision be overruled simply because it was erroneously wrong, even if nothing has changed between the time of that decision and the time when the court is called upon to consider whether it should be overruled?”
U.S. Solicitor General Elizabeth Prelogar replied, “This court, no, has never overruled in that situation just based on a conclusion that the decision was wrong. It has always applied the stare decisis factors and likewise found that they warrant overruling in that instance.”
Julie Rikelman, a litigator for the Center for Reproductive Rights, said, “Casey did the stare decisis analysis for Roe, so the question before this court is whether that stare decisis analysis was egregiously wrong.”
The only truthful answer to that question is “Yes, it was egregiously wrong.”
Unsettling settled law
The Casey opinion argued that the “cost” of the repudiation of Roe “would fall on those who have relied reasonably on the rule’s continued application.”
“For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
Notably, the deadly costs for unborn children in their millions were utterly ignored.
In oral argument for Dobbs, Mississippi Solicitor General Scott Stewart excoriated Roe and Casey: “They have no basis in the Constitution. … They adopt a right that purposefully leads to the termination of now millions of human lives.”
Indeed, former Chief Justice William Rehnquist wrote scathingly of the reliance argument in his dissent against the Casey opinion.
“In the end, having failed to put forth any evidence to prove any true reliance, the joint opinion’s argument is based solely on generalized assertions about the national psyche, on a belief that the people of this country have grown accustomed to the Roe decision over the last 19 years and have ‘ordered their thinking and living around’ it.”
Rehnquist went on:
“The same could have been said about this Court’s erroneous decisions that the Constitution allowed ‘separate but equal’ treatment of minorities. … However, the simple fact that a generation or more had grown used to these major decisions did not prevent the Court from correcting its errors in those cases, nor should it prevent us from correctly interpreting the Constitution here.”
Unfortunately, Jackson disagrees. She said at the hearing (in regard to maintaining stare decisis for erroneous opinions) that the court looks at “whether or not precedents are relied upon, whether they’re workable, in addition to whether or not they’re wrong.”
But the truth is that no degree of workability can turn a wrong into a right.
It was argued in Casey that while Roe “has engendered disapproval, it has not been unworkable.” But the same could have been said of pro-segregation decisions like Plessy. Slavery too was demonstrably “workable.”
Casey camouflaged its moral failure under a facade of virtue:
“The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.”
But Casey, like Roe itself, was just such a compromise. The choices made therein were inspired by the radical ideology of the Sexual Revolution of the late ’60s. They were not principled — they were contemptuous of the founding principles of the Constitution.
“Abortion rights” directly contradict the common law at the time the Constitution was written. The Founders understood what the common law protected: the right to life of an “infant en ventre sa mere or in the mother’s womb.” This was taught to all Anglo-American law students in Sir William Blackstone’s “Commentaries,” the foremost legal textbook at that time.
James Wilson, a signer of both the Declaration of Independence and the Constitution, left us additional proofs of the protective legal duties owed under the common law to the unborn child.
“With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.”
Given that Wilson’s lectures were attended by so many (including Washington) and that he was an influential participant of the Constitutional Convention, perhaps Jackson might consider consulting these texts before she steps up to the responsibilities of the Supreme Court.
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