July 27, 2005


AG: High Court Not Bound by Roe V. Wade (MARK SHERMAN, 7/26/05, Associated Press)

The legal right to abortion is settled for lower courts, but the Supreme Court "is not obliged to follow" the Roe v. Wade precedent, Attorney General Alberto Gonzales said Tuesday as the Senate prepared to consider John Roberts' appointment that would put a new vote on the high court.

The "right to privacy" being naught but a figment of the Court's imagination it can obviously change its collective mind.

Posted by Orrin Judd at July 27, 2005 12:00 AM

And for those who disagree, I guess the Dred Scott case should still be the law of the land.

Posted by: obc at July 27, 2005 12:12 AM

As has been mentioned elsewhere, the left sure didn't object to the complete ignoring of "stare decisis" in Lawrence v Texas...

Posted by: b at July 27, 2005 1:11 AM


The 13th Amendment overruled Dred.

Posted by: Fred Jacobsen (San Fran) at July 27, 2005 1:20 AM

Fred J: Perhaps obc meant to write Plessy rather than Dred Scott.

This is a vacuous point anyway. The Left's talk about "stare decisis" in no more than a social Brezhnev doctrine, whereby they resolve to hold on to what they have, and all change is to be in their direction only. The Reagan era put paid to that notion.

Posted by: Lou Gots at July 27, 2005 4:55 AM

When the SCT has to rule on constitutional matters, it almost by definition has to ignore stare decisis. The lower courts are required to decide them based on established precedent, i.e. stare decisis.

Posted by: bart at July 27, 2005 6:55 AM

Fred, Lou - Or perhaps since the Court ignores the Constitutional text, the 13th Amendment can't overrule Dred Scott.

bart - All judges swear an oath of office that requires them to support the Constitution over all other duties; thus if there's a contradiction between the Constitution and Supreme Court precedent, they're obliged to go with the Constitution. So it shouldn't be all stare decisis for lower courts either.

Posted by: pj at July 27, 2005 8:20 AM

established precedent -- stare decisis.

Stare decisis is the rule that a court should follow its own precedent.

Precedent is the body of decisions that provide the rules of decision in a given case. Some precedents, e.g. those of superior courts, are binding, some, such as those of courts from other jurisdictions (as when a NY case is cited to an Ohio court) are merely suggestive.

SCOTUS dumped stare decisis in the trash years ago. Lawrence and Roper v Simmons (adolescent hangings) are just two examples.

Stare decisis is the ultimate conservative doctrine. It does not prevent change however, as new cases arise, a judge working within the restraint of stare decisis, can usually maneuver around old precedent while paying it due respect.

It is important to remember that a decision consists of its holding and of the judicial baffelgab that goes with it, the dicta. Dicta is not precedent and holdings can be read very narrowly or very broadly.

Precedent can be read so narrowly that it looses all relevance to the rest of the world. Or so broadly that it becomes a constitutional rule.

Posted by: Robert Schwartz at July 27, 2005 10:46 AM


Ah, but stare decisis is based on the presumption that previous decisions are Constitutionally correct and more deeply thought. It's not about supporting the Constitution vs. precedent but deciding what legal decision does, in fact, support the Constitution. Stare decisis presumably contains the collective wisdom of the judiciary as opposed to one judge's opinion and therefore should be more likely to be Constitutionally correct. So your contention to bart is (IMHO) invalid.

Posted by: Annoying Old Guy at July 27, 2005 10:48 AM

Is the statement by Gonzales an admission or a proclamation? And how will Harry Reid view him now?

Posted by: jim hamlen at July 27, 2005 10:59 AM

To go a little further, the Constitution says that: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. So the very basis of the judicial power exercised by the inferior courts created by Congress is that they are inferior, and only one court is supreme. Thus the lower federal courts are bound to follow the Supreme Court's decisions even if the judges would come to a different conclusion.

That's why Roberts and other anti-Roe appointees to the lower courts can say that Roe is "settled law." What they mean is that, as judges of courts inferior to the Supreme Court, they cannot ignore Roe. If they are on the Supreme Court, on the other hand, then that constitutional requirement drops away.

Even once on the Supreme Court, precedent is important. People order their lives around what they predict the Supreme Court will do, based upon what it has said it will do. One definition of tyranny is a system in which the citizens do not know what is allowed and what is prohibited.

Predictability of the law is not unimportant. The primary means of interpreting the Constitution has to be to look at the words of the Constitution and give them their everyday meaning. But when it comes to questions that slip between the cracks of the Constitution, there is a second-order meaning that can be useful. The Constitution can also mean what it has been understood to mean for some time, without much controversy. It is this second-order meaning that is established through precedent.

Also, there are constitutional questions to which there are more than one permissable answer. Some of the provisions of the Constitution are not precise and there allow a range of results. For example, the due process clause does require that the Court decide, from time to time, how much process is due in various circumstances. A justice might disagree with a particular outcome, but agree that it is within the range of outcomes allowed by the Constitution. If the same question comes up again, that Justice might well -- and probably should -- defer to the Court's precedent. Miranda and Gideon are decent examples of this kind of case.

Precedent, though, only goes so far. When a justice believes that precedent directly conflicts with the clear language of the Constitution, the Constitution, not the precedent, must win out.

Posted by: David Cohen at July 27, 2005 11:17 AM

Actually, it was the 14th (which conferred citizenship on all persons born in the US) that overturned Dred.

Posted by: Steven Taylor at July 27, 2005 11:19 AM

"Miranda and Gideon are decent examples of this kind of case."

Both were pure judicial legislation. They both can be cut back.

Posted by: Robert Schwartz at July 27, 2005 11:38 AM

Robert: You have to admit that the fact that Miranda is a due process clause case that involves, wait for it, process makes it worth holding onto just as a rarity.

Posted by: David Cohen at July 27, 2005 12:44 PM

My guess is that this comment by Gonzales is the start of positioning him (Gonzales) for the Chief Justice slot. In other words, he had to take the positions he took on the Texas Supreme Court due to deference to the Supreme Court, but he would not be so bound as a Justice.

Posted by: b at July 27, 2005 1:23 PM

OJ: 'The "right to privacy" being naught but a figment of the Court's imagination it can obviously change its collective mind.'

It seems to me that much of the Bill of Rights assumes a right to privacy--freedom of religion, no troops quartered in peacetime, freedom from unreasonable searches. A right to be let alone, as long as what you're doing isn't hurting anyone else. The crux of the abortion issue is when the fetus counts as 'anyone else'.

Posted by: Bill Woods at July 27, 2005 4:55 PM


You're conflating a couple of property rights into a privacy right. Obviously if fetuses or negroes are property and not human then you can do with them as you wish.

Posted by: oj at July 27, 2005 5:22 PM

Miranda involved the use of the self-incrimination clause of the 5th amendment to invalidate state police actions. The 5th amendment does not apply to the states, only the due process clause of the 14th amendment does. Furthermore, the dictation of police procedures to the states was an act of extra judicial arrogance.

Posted by: Robert Schwartz at July 27, 2005 6:10 PM

Bill: The bill of rights presumes the existence of a multitude of unspecified rights, see Am. IX. The constitution establishes a government with limited powers. (Am. X) The founders, being concerned that Congress could misuse its powers, such as the commerce power and the copyright power, further limited Congress' power with the Bill of Rights.

However denominated, the Bill of Rights does not establish rights. For instance, the freedom of speech referred to in Am. I arises outside the constitution, from Natural Law (Declaration of Independence) or State laws (e.g. Ohio Constitution Sec. 1.11: "Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right.").

Note the difference in language between the Ohio and US constitutions. Ohio declares a right, the Federal limits Congress' power. Other mentions of rights in the Ams. II (right to bear arms) IV (right to be secure against unreasonable searches), VI (right to a speedy trial), and VII (right to a civil jury), are each made without specifying its source.

Posted by: Robert Schwartz at July 27, 2005 6:38 PM

Mr. Schwartz is exactly correctly. It is wrong to read anything about the rights of citizens in the Constitution. That document serves to enumerate and limit the powers of the federal government. The question is never "does a citizen have the right to do this?" but "does the federal government have the power to do this?". This gets away from all of the penumbra / emanation nonsense which arises only because we have inverted the sense of the Constitution.

Posted by: Annoying Old Guy at July 27, 2005 6:42 PM