Abrogating stare decisis by statute: may Congress remove the precedential effect of Roe and Casey?

• Author: Paulsen, Michael Stokes

1. INTRODUCTION

   Stare decisis, the Supreme Court has often reminded us, is a rule of policy, not a rule of law. This is especially tree in constitutional cases, the Court has said repeatedly, because of the difficulty of overturning one of the Court's constitutional decisions by way of constitutional amendment.(1)

   Nonetheless, the Court has occasionally relied on stare decisis as an apparently near-dispositive factor in deciding some extremely important constitutional cases, while at the same time continuing to express the view that stare decisis is not a doctrine of constitutional dimension. Most famously and recently, in Planned Parenthood v. Casey,(2) the Court reaffirmed its controversial holding in Roe v. Wade(3) recognizing a constitutional right to abortion, and did so largely on the basis of the policy of stare decisis.(4) The Court was reluctant--especially so the three Justices authoring the "joint opinion" for the Court in the case (Justices O'Connor, Kennedy, and Souter)--to embrace as correct the substantive due process jurisprudence of Roe. The opinion expressed the apparent doubts of at least some of the Justices constituting the majority about the correctness of Roe as an original matter and the morality of a constitutional right to abortion as a general proposition. Nonetheless, the policy of stare decisis persuaded a narrow majority (5-4) to reaffirm Roe, notwithstanding these reservations.(5)

   I have criticized the Court's opinion in Casey in other writing, challenging its reliance on stare decisis and arguing that stare decisis is often merely a disingenuous "cover" for a decision made on other grounds.(6) My goal here, however, is to take seriously the Court's stated reliance on stare decisis in Casey as a good-faith position sincerely adopted by the authors of the joint opinion. At the same time, I wish to take seriously the Court's position that stare decisis is neither a doctrine of constitutional dimension nor a strict rule of law, but rather is a subconstitutional doctrine of ostensibly wise judicial practice, procedure, and policy. Accepting both of these propositions, I wish to address whether Congress may abrogate stare decisis in a particular class of constitutional cases (or in federal question cases generally), and direct the federal courts to decide such cases(7) in accordance with the courts' best present understanding of the meaning of the Constitution, without according prior judicial interpretations any decision-altering weight beyond the persuasiveness of their reasoning. The upshot of such a statute would be that courts would be obliged to overrule a prior interpretation of the Constitution if persuaded that the prior interpretation was incorrect on the merits.(8)

   In treating this question, I will not indulge in the usual academic pretense (which is almost invariably a pretense) of dispassionate neutrality. I have written on the abortion issue before, and my view that Roe is fundamentally illegitimate (and immoral) is well-documented.(9) Nor do I wish to hide my purpose here. My motivation for writing, revealed in the style of my presentation, is one that openly reflects a desire that Roe be overturned.(10) My analysis, however (as distinguished from my motivation), is not, I hope, result-driven or result-bound. The skeptical reader may put that to the test: If sound, my thesis should be fully generalizable across the entire range of constitutional issues. If Congress may abrogate the stare decisis effect of Roe and Casey, in effect requiring the Court to reconsider the abortion issue on a clean slate, it may do the same for, say, Bowers v. Hardwick,(11) a controversial constitutional holding that engenders equally strong views (reflecting, typically, different political alignments).(12) The argument that I offer here is content-neutral. The merit of the argument does not depend on the issue for which it is advanced. Accordingly, I challenge the skeptical reader to substitute the issue of his or her choice--we all have our lists of most-despised precedents--as a way of testing the thesis.(13)

   The issue that I have chosen is abortion, one of the most persistent, important, and divisive constitutional issues of our day, and one in which the doctrine of stare decisis recently has played a dramatic role. My proposition is simply this: If the position of the authors of the joint opinion in Casey was taken sincerely and in good faith, as part of an effort by self-consciously moderate-conservative Justices like O'Connor and Kennedy to follow a policy of perceived "judicial restraint" (even though such a policy is not required as a matter of law and is not of constitutional dimension), Congress may by statute relieve the Court of the perceived necessity of following this policy by abrogating the policy of stare decisis. Congress may substitute its judgment about mere considerations of policy or prudence for the Court's, and may legitimately expect that the Court will abide by policy judgments made by Congress within the scope of its constitutional powers. What Congress may not do is substitute its judgment for that of the Court on the merits of a particular constitutional issue and direct the Court to abide by that judgment. The courts have the Article III power to decide constitutional cases on their merits. A statute abrogating stare decisis does not impair that power; it merely directs courts to carry out that constitutional power without regard to nonconstitutional policy or pragmatic considerations, where Congress has legislated a different policy with respect to such considerations.

   It follows that Congress may, by prospective legislation--for abortion cases or any others--direct the Court to decide constitutional or statutory interpretation issues without regard to prior precedent (aside from the precedent's persuasive value to the Court on the merits). Mere nonconstitutional policy considerations supporting the judicial practice of stare decisis--reliance, predictability, stability, restraint, and the like--lie within the power of Congress to weigh and evaluate. The courts' practice in this regard is not an unalterable attribute of "[t]he judicial Power" vested by Article III. It is, rather, like other judge-made "prudential" limitations on the exercise of the judicial power, a form of "common law" followed by courts as a matter of judicial policy. Such common law may be displaced by an act of Congress.(14) Thus, if Congress determines that the policy considerations typically thought to support a policy of stare decisis as the judiciary's default rule should not, in a given class of cases, lead courts to decide such cases in ways contrary to what the courts otherwise would view as the correct interpretation of the Constitution, Congress may enact legislation so specifying. Indeed, the point should be almost obvious. The only question that should be at all troubling is why courts so often assume that they should follow precedent rather than the Constitution in cases where the two are believed or assumed to conflict.(15)

   By virtue of the Necessary and Proper Clause, Congress has enumerated legislative power to pass a statute abrogating stare decisis, as an enactment appropriate to the carrying into execution of the judicial power. The exercise of such legislative power would not intrude on any constitutional province of the judiciary; by the Supreme Court's own admission, stare decisis is merely a rule of policy. Nor would such a congressional enactment dictate how the courts are to decide any given case--how they are to come out on the merits on the abortion issue, for example, or on any other. Such a statute would merely direct courts to decide such cases in conformity with the Constitution and not to apply precedents to the contrary if they are persuaded that a precedent decision is not a sound interpretation of the Constitution. Finally (though this point is slightly more problematic), there is no persuasive reason why Congress could not limit such a bill, as a first step (or as the only step), to issues of substantive due process and abortion, or to any other specific subject matter.(16)

   In short, Congress may require the Supreme Court to consider the question of whether the Constitution grants a right to abortion, the next time it arises, on a clean slate insofar as the precedential force of earlier abortion decisions is concerned. This could well lead to a result on the merits different from the one reached in Casey, even taking into account President Clinton's appointment of two Justices who likely support the result in Roe. If at least two of the three Justices who authored the joint opinion in Casey (O'Connor, Kennedy, and Souter) were honest in the stated reasons for their votes, their reaffirmation of Roe rested almost entirely on the policy of adhering to precedent, "whether or not mistaken,"(17) in order to spare the Court the damage to its prestige and to public perceptions of its legitimacy that the Justices feared might flow from refusing to adhere to its "watershed" precedents.(18) If these Justices' votes in Washington v. Glucksberg(19) are to be taken seriously, at least two of them have repudiated the notion that the doctrine of "substantive due process" provides a basis for the creation of new constitutional rights lacking a basis in either constitutional text or specific historical tradition. Judicial creation of new substantive due process rights, without such foundation, was exactly the methodology underlying Roe. To be sure, Glucksberg does not explicitly disapprove Roe or any other substantive due process decision that had gone before. But Glucksberg unquestionably undermines the doctrinal footing on which at least some of those decisions rest, a factor that undermines the justification for adhering to such decisions, even under the stare decisis analysis of Casey.(20) After Glucksberg, the only thing that sustains Roe is the policy...