Dworkin, precedent, confidence, and Roe v. Wade.

• Jurisdiction: United States
• Author: David, Gregory B.
• Date: 01 January 2004

INTRODUCTION

January 22, 2004, marked the thirty-first anniversary of Roe v. Wade. (1) When the Supreme Court reconsidered and upheld the merits of Roe in Planned Parenthood of Southeastern Pennsylvania v. Casey (2) in 1992, the majority put front and center the importance of stare decisis. The Court cited Justice Benjamin Cardozo for the wisdom that a judicial system could not function if it considered each issue anew in every case that raised it. (3) Precedent assumes a greater role in a special case like Roe, the majority said, where the "Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." (4) Needless to say, Roe did not end the controversy, and with a COP-controlled Congress and White House, Roe's status is somewhat precarious. (5) On January 23, 2003, President George W. Bush promised antiabortion protesters assembled on the National Mall "'to protect the lives of innocent children waiting to be born'" and pledged that his administration would promote "'compassionate alternatives'" to abortion. (6) The Supreme Court likely stands one vote away from overturning Roe. As Justice Harry Blackmun himself noted in his opinion in Casey: "I fear for the darkness as four Justices anxiously await the single vote necessary to extinguish the light." (7) Within the next few years, it is likely that at least two Justices will step down, and depending on their replacements, the partial dissenters in Casey may garner the fifth vote necessary to overturn Roe.

The Voice of the Cynic and the Theoretical Response

It is conceivable that the political party that puts the next Justice on the bench will decide the fate of Roe. The cynic voices this concern with two grave charges. First, the cynic suspects that the new Justice will not only vote based solely on political persuasion, but also that she will do so against the mandate of stare decisis. That is, the Justice will disregard established law and vote solely on the basis of political preference. The second charge is somewhat different. The cynic argues that a judge can always fashion a legal argument to support how she would vote politically. So, the cynic is concerned that the judge will either ignore the law or simply shape the law to serve whatever outcome she desires. Perhaps the trend over the last twenty years of a polarized Supreme Court voting along party lines warrants such distrust. (8)

Whether or not such charges are descriptively accurate, a system of adjudication should take account of such concerns. When developing a theory of adjudication, one determines how judges should decide cases. That is, one asks what normative constraints should bind judges in the context of decision making, including whether to adhere to the doctrine of stare decisis. Applying this normative inquiry to Roe, I ask to what extent deference to prior reasoning should factor in the Court's decision.

In this context, I critically examine the role of confidence in Ronald Dworkin's theory of adjudication. Namely, I propose to answer the following two-part question: What should constitute a judge's confidence that a prior decision was wrongly decided, and how much confidence should be required to reject precedent? As to the first part, I will argue that a judge's confidence should reflect a good faith attempt to balance the underlying legal principles of the case. As to the second part, I will argue that common law standards governing the conditions under which one should defer to precedent should dictate the amount of confidence required.

With these requirements in place, neither concern of the cynic materializes. That is, if a judge has a sufficient degree of confidence-constituted by proper considerations--she will not decide a case like Roe on the basis of political persuasion, nor will she mold a legal argument to artificially reach the result she would have preferred if the law did not govern. This conclusion, however, requires certain assumptions about the nature of cases and judicial decision making. In the Section entitled "Good Faith," (9) I seek to reveal what one must assume to achieve the possibility that a judge can decide a case in good faith. Optimistically, one significant contribution of this Comment will be its attempt to make explicit the assumptions that underlie such a model of confidence and, more generally, judicial decision making within Dworkin's theory of adjudication.

My project does not end there, however. I shall argue that, even where objective standards establish the level of confidence required to overturn precedent, a proper theory of adjudication must allow for disagreement among individual judges about what those objective standards are and what level of confidence they require. Such disagreement goes to the heart of the dispute over how to properly give Roe the respect it deserves. That is, a workable theory must allow judges to disagree over the very standards that should govern the degree of deference to which a case such as Roe is entitled. Ultimately, a theory of adjudication cannot provide a bedrock place of agreement, a starting point from which judges agree about how to treat precedent. Although such a conclusion is disappointing because it asserts that, even at the theoretical level, no ground on which the Court should agree can be established, this Comment finds such a conclusion inevitable.

Part I sets the stage with the background necessary to make sense of this project. There I explore Dworkin's rejection of H.L.A. Hart's conceptual understanding of judicial discretion, especially in the context of precedent. I then discuss the role of legal principle in Dworkin's theory of adjudication, as well as the tradeoff it represents between stability and predictability on the one hand and the recognition of the possibility of error on the other. Part II sets forth the main argument of the Comment. I draw a distinction between first- and second-order legal principles, which I utilize to explain the grounds of disagreement over the role of precedent. I address the questions regarding what confidence is and how much should be required in the context of rejecting precedent. Additionally, throughout Part II, I discuss the practical ramifications of the conclusions I reach on Roe.

1. HART, DWORKIN, AND DISCRETION

   1. Judicial Obligation: Positivism and Dworkin

      In the past thirty-five years, two important but fundamentally different legal theories have attempted to address the philosophical question of the nature of judicial obligation. (10) The first approach is modern positivism, best represented by H.L.A. Hart (11) and Joseph Raz. (12) According to this view, a judge is obligated to apply the rules that the legal system recognizes as law. Such law might derive from precedent that judges establish or rules that the legislature or some other lawmaking body creates. As we shall see below, a rule does not always determine how a judge should decide a case. When this occurs, the judge's decision involves an exercise of discretion because the law poses no obligation to decide the case one way, rather than another.

      The second approach is that of Ronald Dworkin. (13) As I shall explore in more detail below, Dworkin conceives of the law as involving more than the rules that have been issued by the legislature, judges, or other law-creating entities. In contrast to positivism, Dworkin conceives of a system of adjudication that operates in accordance with moral principles regarding what is just and fair. (14) These legal principles are what justify the various legal rules within the system.

      Many find the role that Dworkin assigns to legal principle appealing because it provides the theoretical underpinnings of a predominate legal mode of reasoning used by law professors, lawyers, and courts. (15) To illustrate this mode of legal reasoning, consider the following routine task a professor might invite her first-year law students to perform. She presents the class with a series of seemingly disparate cases. The professor then asks the class to reconcile these differences, typically by developing an explanation that can justify the results in each case. (16) Often such an explanation involves the identification of a principle or principles that could justify the results in both cases, even though no case ever made reference to such a principle.

      Judges must perform a similar task in a number of different contexts. A federal district court judge, for example, is bound by the decisions of the court of appeals and the Supreme Court above her. She has a responsibility to apply those decisions, when applicable, to cases that come before her. When such case law seemingly conflicts with itself, the judge bears the responsibility of reconciling the cases when possible before determining that some subset of them were wrongly decided.

   2. Hart and Judicial Discretion

      Imagine that a state legislature enacted the following statute: "All owners of motorcycles must obtain a proper license for their vehicle. Failure to do so will result in a $250 fine." The vast majority of the time, one would have no uncertainty about the application of this rule to a particular case. Harley-Davidsons are model examples of vehicles to which the statute applies, whereas cars and trucks clearly fall outside its scope. But even such a plain and unambiguous statute leaves open the possibility of a case where the proper application of the rule remains uncertain. A moped might, for example, prove a borderline case. In some respects it resembles a motorcycle, but unlike a motorcycle, a moped cannot travel at high speeds. One might wonder whether a moped should be classified as a "motorcycle" for purposes of analysis under the state's law. (17) A judge confronted with the citation of a moped owner will find little guidance in the statute as to its applicability to...