posted by Michael Stokes Paulsen
My thanks to Jack Balkin for inviting me to guest-blog for a while. (I had been ribbing Jack about the need for an occasional more-conservative voice, to give Balkinization a modicum of respectability.) Today's Supreme Court decision in Gonzales v. Carhart, the partial-birth abortion case, seemed like as good a time as any to start.
I was, quite literally, teaching *Stenberg* v. Carhart (following on the heels of Monday's class on Roe v. Wade and Tuesday's on Planned Parenthood v. Casey), when a student broke in with the comment that the Court had decided today's partial-birth abortion case, upholding the federal statute. (Ah, the joys of internet access in the classroom.) Seamlessly weaving the student's interjection into the class decision, I asked him about the holding: "Who wrote?" (No one needed to ask the vote or the lineup.) "Kennedy?! Makes sense. Was Stenberg overruled? Could he do that, consistent with his opinion in Casey?"
The answer (as most readers of this Blog probably know by now) is that Stenberg was distinguished, rather than directly overruled -- and not on the most persuasive of reasoning. This, of course, was probably inevitable: Kennedy's vote was crucial to the majority to sustain the federal law; he had dissented vigorously in Stenberg (decided in 2000), on the ground that Casey's purported "balance" should have permitted the partial-birth ban; yet Kennedy was to some extent boxed in by his fifteen-page ode to stare decisis in Casey. You remember Casey: The promise of constancy once given, to all those "tested by following" the Supreme Court's "watershed" decisions -- "whether or not mistaken" -- lest the people's "belief in themselves" be shaken and the nation's "understanding of itselfs as a constitutional Republic" be disturbed by the Court's failure to "remain steadfast" in its efforts to preserve its institutional capital as the body entitled speak before all others on behalf of The People. And all that.
There is thus nothing much surprising, even if there is something more than a little regrettable from the standpoint of principle, about the narrow-almost-(but-not-quite)-to-the-point-of-nothingness opinion today. (An additional virtue, if it is one, is that it gives Chief Justice Roberts and Justice Alito a little more time to work out their views on stare decisis, Casey, and Roe, before being outed by necessity.) The dissenters certainly knew, and said, that today's partial-birth decision is not easily reconcilable with the majority opinion in Stenberg v. Carhart seven years ago. The majority certainly knew it, too.
Stare decisis is a charade. The doctrine, taken seriously, suggests that judges should deliberately decide cases in ways they otherwise are fully persuaded are wrong, on what they otherwise would regard as the proper interpretive criteria -- sometimes. (When that "sometimes" is is itself a disputed aspect of the doctrine.) Taken seriously, the doctrine is unconstitutional: it suggests that a court should prefer the (by hypothesis) faithless earlier departure from the Constitution to the correct understanding of the Constitution, in situations where they conflict. This is directly contrary to the reasoning of Marbury v. Madison -- a sound precedent if ever there were one. (Marbury is right in its argument for judicial review not because it is Marbury, but because it is right.)
But of course the doctrine of stare decisis is not taken seriously, and with good reason. Rarely, if ever, does the Supreme Court, or any individual justice, reach an outcome different from how the Court (or justice) would decide the matter independent of precedent. (Ironically, Planned Parenthood v. Casey may be the one true, significant counterexample.) Usually, stare decisis is just a dishonest or disingenuous cover for a decision reached on other grounds. And, as Gonzales v. Carhart today shows, stare decisis does not truly constrain departures from prior decisions either. (Gonzales v. Carhart is hardly the most compelling illustration of this reality: Casey itself overruled two prior abortion decisions and altered, slightly, the legal framework of Roe -- on the ground that "stare decisis" required it. Lawrence v. Texas overruled Bowers v. Hardwick, with Kennedy there searching desperately, and unsuccessfully, for persuasive reasons why Casey's stare decisis analysis should not bar such overruling.) The notion of stare decisis thus hides the ball, and often drives the true basis of decision underground. The result (when it isn't an outright wrong answer) is proliferation of artificial distinctions, exacerbartion of confusion, creation of a greater and more contradictory body of decisions (from which to permit courts to pick and choose, ostensibly on the basis of stare decisis), and general dishonesty (or at least a lack of candor) in constitutional law.
The question with which I left my class is this: "Does the Court's current doctrine of stare decisis require adherence to the Court's current doctrine of stare decisis, if one were to apply (as if it could be taken seriously) the Court's current doctrine of stare decisis to such a question?"
The answer, of course, is that the doctrine is a cruel hoax, leading (most of the time) to dishonest or strained distinctions (like today's) of prior cases, rather than straightforward discussion of a precedent's correctness or incorrectness. It leads (other times) to dishonest or disingenuous adherence to prior decisions, where the real ground is that the Court either believes the precedent is correct in its interpretation or reaches a desired policy result. (That is, the doctrine is a pure makeweight.) It never requires adherence to a prior case; and it never bars departures. It permits a court to either follow or not follow the holding, and logic of prior decisions. As I have quipped to my students, the doctrine of stare decisis is that courts adhere to their prior precedents except for when they don't.
The true ground for the decision in Gonzales v. Carhart is that Stenberg v. Carhart was crushingly and horribly wrong, as a matter of first principles of constitutional understanding. But whether one agrees with this view or not, that is the issue. Is there anyone -- anyone on the planet -- who thinks that Gonzales v. Carhart and Stenberg v. Carhart were both right? Is not this an observation on which liberals and conservatives can agree?
The study and use of precedent in legal argument, including constitutional argument, is such an ingrained feature of legal training and practice that it has acquired the thoughtlessness of familiarity. But lean on the doctrine of stare decisis just a little bit and it collapses. My position is extreme-sounding, but on reflection should not be thought extreme at all: The doctrine of stare decisis, in the sense of deliberate adherence to precedent decisions one otherwise is fully persuaded are simply wrong, has no legitimate place in U.S. constitutional law. By definition, if taken seriously, the doctrine always directs decisions away from their proper answers (and does so unconstitutionally). And in practice, it adds nothing but mild-to-strong dishonesty and confusion. Witness Gonzales v. Carhart.
MSP
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