LOWER COURT "DISSENT" FROM ROE AND CASEY.

• Author: Myers, Richard S.

1. INTRODUCTION

   There has been much recent speculation (1) about the fate of Roe v. Wade (2) and Planned Parenthood v. Casey. (3) Supporters of Roe and Casey contend that the decisions are "settled law" that the Supreme Court should not overrule. (4) But, in reality, Roe and Casey are not settled, as the frequent and varied opposition to these decisions reflects. One intriguing source of opposition has been from lower court judges. While still following these precedents, an increasing number of these judges have expressed disagreement with the Court's decisions. (5) This paper examines these lower court opinions, which may serve to make the overruling of Roe and Casey more likely.

2. ROE AND CASEY AND STARE DECISIS

   With the changing composition of the United States Supreme Court, there has been increasing speculation about the fate of Roe and Casey (6) Many think that the new conservative majority will overrule Roe and Casey. (7) A number of state legislatures are acting on this assumption and have passed laws that are clearly unconstitutional under current law but that, these legislatures believe, the new Supreme Court will uphold. (8)

   But the Court is hard to predict. At the time of Casey in 1992, it appeared the Court was poised to overrule Roe (9) Apparently, the Court voted to do just that, but Justice Kennedy changed his vote (10) and Roe (in a modified form) was preserved. (11)

   Roe and Casey have remained in place and, at least in confirmation battles, are treated as "settled law." (12) During their confirmation hearings, nominees to the Court are expected to promise that they will respect Supreme Court precedent. (13) But it is not at all clear what that means.

   There has been much attention to the extent to which Roe and Casey are insulated from reversal by the doctrine of stare decisis. (14) This is particularly true because Casey discoursed on stare decisis at length (15) and viewed Roe as having "rare precedential force." (16)

   Most observers, though, believe that stare decisis will have little impact on the Court's approach to this issue. (17) This assessment has been reinforced by the Court's recent decision in Franchise Tax Board v. Hyatt. (18) In Hyatt, the Court (by a 5-4 majority) almost casually overruled Nevada v. Hall. (19) The Court did so without so much as mentioning Casey and its discussion of stare decisis. That overruling led Justice Breyer to state--"Today's decision can only cause one to wonder which cases the Court will overrule next." (20) Many observers viewed Justice Breyer's comment as a warning that Roe is in danger of being overruled. (21)

   This speculation was reinforced the next month when the Court decided Knick v. Township of Scott. (22) In Knick, the same 5-4 majority overruled Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. (23) The dissent argued that the majority did not have a special justification for overruling and that the majority was changing course simply because five Justices disagreed with Williamson County. Justice Kagan ended her dissent with this paragraph:

   Just last month, when the Court overturned another longstanding precedent, Justice Breyer penned a dissent. He wrote of the dangers of reversing course "only because five Members of a later Court" decide that an earlier ruling was incorrect. He concluded: "Today's decision can only cause one to wonder which cases the Court will overrule next." Well, [Justice Kagan continued] that didn't take long. Now one may wonder yet again. (24) I think the view that stare decisis will have little impact on the Court's evaluation of whether to overrule Roe and Casey is correct. There are many reasons why stare decisis is likely not to have much influence in this context. The principal reason is that the Court does not really adhere to a stare decisis norm. Professor Schauer recently stated:

   [F]or the Supreme Court of the United States, with its small and self-selected docket heavily populated by issues of high moral and political valence, there does not appear to be in place a stare decisis norm--a norm pursuant to which most of the Justices most of the time would feel compelled by internal belief or external pressure actually to adhere to past decisions even when those Justices believed those decisions to be mistaken. (25) Professor Schauer went on to state that:

   [S]tare decisis will serve almost entirely as a rhetorical weapon against opponents of what the wielder of the weapon believes to be the right result, questions of stare decisis aside. Stare decisis will continue not to constrain, and accusations of failure to adhere to stare decisis will continue to be part of the rhetorical arsenal of those who agree with a past decision and lament its overturning. So it has been in the past, and so it is likely to continue in the future. (26) Even if one thought that there was a stare decisis norm that the Court followed (as a presumptive rule), there are particularly strong reasons not to adhere to past precedents in this context. Beyond the fact that Roe and Casey were wrongly decided, the interests in overruling seem to be particularly compelling. Roe and Casey prevent states from "protecting those who will be citizens if their lives are not ended in the womb." (27)

   If this judgment, i.e., that the state does not have a compelling interest in protecting human life, were regarded as incorrect, it is difficult to imagine how the Court would be justified in not abandoning error. Although the values furthered by stare decisis, ... are surely important, any such interests pale in comparison to the interests on the other side. (28) Moreover, Roe and Casey are not, in fact, settled law. A deeply divided Court has reaffirmed Roe (or at least portions of Roe (29)) and Casey, but the decisions have been called into question and regularly challenged in various venues for many years.

   Roe and Casey have, of course, been challenged by Justices on the Supreme Court. Justices White and Rehnquist dissented in 1973. (30) It is often remarked that the dissenting opinions were inadequate, (31) although the dissents did make some effective points. For example, Justice White's critique of the Court's judicial activism is often quoted. Justice White noted, "As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but in my view its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court." (32) But on the whole, the dissents were weak. (33) More recent dissents by Justice Scalia in Casey (34) and Stenberg (35) and by Justice Thomas in Stenberg (36) have been much more effective.

   Roe and Casey have also been challenged in the scholarly literature. (37) Early critiques by John Hart Ely and Richard Epstein, for example, are still quite powerful. (38) And there have been many other, more recent critiques. (39) And, perhaps most interestingly, no one defends the Court's opinion in Roe. As Professor Paulsen has observed: "I know of no serious scholar, judge, or lawyer who attempts to defend Roe's analysis on textual or historical grounds." (40) Many scholars, Paulsen has noted, support the result in Roe, but most scholarly efforts try to rewrite the opinion to find alternative justifications for an unrestricted right to abortion. (41)

   Roe and Casey have also been challenged by Congress and by state legislatures, as we have seen increasingly in recent years. (42) Laws such as the federal Unborn Victims of Violence Act (and their state counterparts) challenge the premises of Roe, even though they are written to avoid a direct clash with Roe. (43) Moreover, states have been increasingly aggressive in passing laws that challenge the framework of Roe and Casey. (44) Alabama's decision to prohibit most abortions is the most recent and far reaching example. (45)

   Roe and Casey have also been challenged in the broader culture. Clarke Forsythe has demonstrated that the Court's decisions are inconsistent with public opinion. (46) According to Forsythe,

   [w]hat makes abortion uniquely controversial is that the Justices sided with a small sect--7 percent of Americans--who support abortion for any reason at any time. And the Justices have for forty years prevented the 60-70 percent of Americans in the middle from deciding differently. That conflict between public opinion and the Supreme Court's nationwide policy is one key reason why Roe is uniquely controversial. (47) And this controversy is likely to continue since recent opinion polls demonstrate increasing pro-life sentiment. (48)

   An intriguing instance of opposition to Roe and Casey has been among lower court judges. This is a bit surprising since most think that vertical stare decisis is a very strong norm. (49) It is not uncommon for lower court judges to express disagreement with decisions of superior courts, (50) but in this context the nature of the "dissent" seems out of the ordinary. Linda Greenhouse made this point in a column discussing the court cases that potentially threaten the right to abortion. In commenting on lower court opinions that reflect disagreement with Roe and Casey, Greenhouse stated: "I've seen a lot in decades of paying close attention to decisions coming out of the federal appeals courts, but I can't remember seeing such expressions of...