An Essay on Precedent, Standing Bear, Partial-birth Abortion and Word Games - a Response to Steve Grasz and Other Conservatives

• Publication year: 2022

35 Creighton L. Rev. 11. AN ESSAY ON PRECEDENT, STANDING BEAR, PARTIAL-BIRTH ABORTION AND WORD GAMES - A RESPONSE TO STEVE GRASZ AND OTHER CONSERVATIVES

Creighton Law Review

Vol. 35

HON. RICHARD G. KOPF(fn*)

Like Elmer Dundy,(fn1) the author of United States ex rel. Standing Bear v. Crook,(fn2) I have been privileged to serve as a federal judge in Nebraska.(fn3) Unremarkably, or so I thought until recently, we try as best we can to adhere to the commonly accepted norm that lower court judges must follow and fairly apply analogous opinions of higher court judges. This doctrine, called "precedent" or "stare decisis,"(fn4) requires the lower court judge to apply the higher court judge's prior opinion in a similar case, even if the lower court judge passionately disagrees with the result or the reasoning. In academic circles, this notion is called "vertical" precedent.(fn5)

In this essay,(fn6) I explore vertical precedent from the viewpoint of a trial judge who must actually decide a difficult case like one involving partial-birth abortion.(fn7) In so doing, I cast a critical eye on a law review article written by Steven Grasz which refers to the Standing Bear opinion as a metaphor for the proper use of precedent in the context of abortion litigation.(fn8) I conclude that Mr. Grasz proposes a strain of judicial activism that he ought to decry.

I. AN OVERVIEW

Let us back up for just a moment. As in all things, perspective is helpful.

A. PRECEDENT AND INFERIOR FEDERAL JUDGES

One might spend an entire career trying to come up with a theory of precedent.(fn9) In fact, one very smart judge thinks the task is impossible.(fn10) Nonetheless, all federal judges know in their gut what thedoctrine requires, even if they have no clue what theory underlies it.(fn11)

Precedent for a judge of a subordinate federal court "is theoretically absolute."(fn12) While a member of the Supreme Court is free to examine "a series of prudential and pragmatic considerations designed to test"(fn13) the utility of applying a prior decision to a pending case, "it is generally conceded that 'the duty of a subordinate court'" is "to follow the laws as announced by superior courts."(fn14) More bluntly, for the inferior court judge, "prudential and pragmatic" considerations are out the window when there is precedent to be found.

Sometimes called the "result" model, this axiom requires that a court decide "in favor of a litigant because his case is most analogous to a decision rendered by a superior court."(fn15) That is, when a lower court judge decides whether a decision should be followed as precedent, there are few (perhaps none) moral or philosophical principles involved. Rather, it is (or ought to be) a question of similarity.(fn16)

While a scholar would be frustrated with such a narrow job description,(fn17) the judge knows that it provides a limiting, and therefore more democratically acceptable, role definition. Put another way, this cramped view of precedent supposes, as does Article III itself,(fn18) that it is preferable to have only nine unelected law givers (Supreme Court Justices), and a bunch of dutiful minions (all the rest of the judiciary), than it is to have a thousand.

When he was a judge, Robert Bork made a related, yet important, point. The judge's choice to apply a decision of a higher court as precedent requires probity and no more. Bork wrote that "[t]he only questions open for us are whether the Supreme Court has created a right which, fairly defined, covers the case before us or whether the Supreme Court has specified a mode of analysis, a methodology, which, honestly applied, reaches the case we must now decide."(fn19) Note, and remember, these words: "fairly defined" and "honestly applied." Translation: "good faith."(fn20)

This means, of course, that precedent becomes especially significant when, despite our misgivings about the outcome, a given result is honestly dictated by the precedent. We do not follow precedent because we like the result or think it just. "Authority, and therefore theauthority of precedent, matters when and only when the precedent (as perceived by the current decisionmaker) is mistaken-only when past wrong decisions can provide reasons for decision despite their wrongness, and therefore precisely and only because of their pastness."(fn21)

In sum, when looking for precedent, lower court judges are supposed to play it straight, particularly when they do not like the result.(fn22) "Read 'em and weep" could be our motto.

B. THE PARTIAL-BIRTH ABORTION LITIGATION

By now, the litigation over the efforts of many states to ban partial-birth abortions is well-known.(fn23) With only very few exceptions, every federal court to consider the question found the statutes barring these surgical procedures unconstitutional.(fn24) Virtually all of these cases (including those that upheld the bans) applied the Supreme Court's earlier decisions in Roe v. Wade(fn25) and Planned Parenthood v. Casey(fn26) as pertaining to the dispute and as binding upon the lower federal courts. The dispute was not about whether Roe and Casey applied, but rather how to apply them.

C. MR. GRASZ'S LAW REVIEW ARTICLE

Before we get to the meat of it, we need a context for Mr. Grasz's law review article. In December of 1999, when the article was published, a petition for certiorari had been filed by the State of Nebraska asking the Court to take the Nebraska partial-birth abortion case. Ashe had been in the earlier stages of the litigation, Mr. Grasz was one of the lawyers.(fn27)

Nebraska Deputy Attorney General Grasz, of course, hoped that the Supreme Court would take the case, as it later did, and vindicate his position, which it refused to do.(fn28) Unlike a subordinate court, the Supreme Court is free to change its mind and disregard or overrule its prior decisions, even if these prior decisions might otherwise be sufficiently analogous to be called "precedent."(fn29) This is the notion of "horizontal" precedent.

Therefore, and to be clear, Mr. Grasz cannot fairly be faulted for asking the Supreme Court to do what it manifestly had the constitutional right to do.(fn30) My substantive, and not personal, dispute with Mr. Grasz and other conservatives is over the suggestion that the lower courts should have ignored Supreme Court precedent when deciding the partial-birth abortion cases. And, now, I turn to the substance of his law review article.(fn31)

Mr. Grasz began his article with a compelling rhetorical device. He compared "partially-born children" to Native Americans in 1879.(fn32) He invoked the Standing Bear opinion as a metaphor.(fn33) While he acknowledged that the "[l]ower federal courts are obliged to follow clear legal precedent regardless of whether it may seem unwise or evenmorally repugnant to do so," Mr. Grasz quickly retracted the point.(fn34) That is, "a court need not extend questionable jurisprudence into new areas or apply it in areas outside of where there is clear precedent."(fn35)

He proceeded to chastise a lower court decision(fn36) (mine) for brushing aside and denying the claim that "partially-born human beings" were persons under the Fourteenth Amendment. He wrote:

In a preliminary injunction memorandum, one federal court brushed this issue aside by noting that "there is no precedent" for treating partially-born human beings as persons. Amazingly, this

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