Editore"s Note
Tilting at Windmills

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October 30, 2005
By: Kevin Drum

SUPER STARE DECISIS....Jeffrey Rosen writes in the New York Times today about "super stare decisis," the notion that some Supreme Court decisions have been reaffirmed so strongly over such a long period of time that they shouldn't be overturned regardless of how you feel about them on constitutional grounds. He notes, in particular, that conservative darling Michael Luttig seems to have embraced this doctrine with regard to the Supreme Court's affirmation of Roe v. Wade in the 1992 case of Planned Parenthood v. Casey. Ann Althouse isn't so sure:

Quite clearly, Luttig is not saying that there is a such thing as super-stare decisis. He's a Court of Appeals judge bound by Supreme Court precedent and subject to Supreme Court review. He's paying attention to what that Supreme Court has written about abortion rights, and he's reading the Court to have intended Casey to serve as an especially strong precedent.

In making up a new term, Luttig may have even been subtly mocking the Casey Court.... Saying it's super powerful doesn't make it so.

Maybe so. It seems to me though, that the focus on Roe is misguided in any case. If my understanding of Roe is correct, it's based on a generalized right of privacy as decided in Griswold v. Connecticut, which in turn was based on our current understanding of the doctrine of substantive due process. I suspect you can't overturn Roe without also substantially overturning Griswold and significantly weakening the modern application of substantive due process at the same time. Rosen mentions this, and it seems like it's really the key issue: not whether Roe is a superprecedent, but whether Griswold's interpretation of substantive due process is a superprecedent.

The funny thing is that overturning Roe might turn out to have only a modest impact on abortion rights in the real world. Blue states like California and New York would keep their liberal abortion laws, while most deep red states have put so many roadblocks in the way of getting an abortion that it's all but illegal in some of those places already. It's hard to say for sure. However, if overturning Roe required overturning Griswold, as many conservatives think it does, it would not only return us to the grisly days of back-alley abortions in red states that decided to make abortion completely illegal, but it would also have a devastating impact on an enormous variety of rights and precedents that go far beyond abortion. Clarence Thomas may be enough of a true believer not to care about that, but in the real world the rest of us do.

UPDATE: Have red states really put up so many roadblocks to getting an abortion that it's "all but illegal in some of those places already"? Maybe not. Matt Yglesias presents some evidence to suggest that abortion is still pretty readily available almost everywhere.

Kevin Drum 1:12 PM Permalink | Trackbacks

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