Taking Another Look at the Call on the Field: Roe, Chief Justice Roberts, and Stare Decisis.

• Author: Molony, Thomas J.

INTRODUCTION I. THE CHIEF JUSTICE'S HISTORICAL APPROACH TO STARE DECISIS A. Stare Decisis with Greater Force B. Stare Decisis with Lesser Force II. CONVINCING THE CHIEF JUSTICE A. The Force of Planned Parenthood v. Casey B. placing Roe on the stare Decisis Continuum C. Applying Stare Decisis Factors to Roe 1. Roe's Age 2. Quality of Roe's Reasoning 3. Roe's Workability 4. Developments Since Roe 5. Reliance on Roe D. Effect of overruling Roe on the court's Legitimacy CONCLUSION INTRODUCTION

Speculate no more. Chief Justice Roberts now has command of the united states supreme court. Nowhere was this on greater display than the last day of the October 2018 term when the court issued opinions addressing partisan gerrymandering and the propriety of including a question about immigration status in the census. (1) Chief Justice Roberts was the swing vote and authored both opinions of the court, leading the court's conservative wing in rejecting a challenge to North carolina and Maryland redistricting plans and siding with the progressive Justices in concluding that the Department of Commerce's decision to include a citizenship question on the census did not proceed from reasoned agency judgment. (2) Now more than ever, the man who described the job of a judge as that of an "umpire" (3) is making the calls that decide the game.

of course, it is one thing to say whether the last pitch was a ball or a strike. (4) It is quite another to review a call made almost fifty years ago and decide whether to overrule another umpire. Yet that is what abortion opponents want the Court to do with respect to Roe v. Wade. (5) And how Chief Justice Roberts would vote if presented with a request to reconsider the 1973 decision has been subject to much prognostication. (6)

Both sides of the abortion debate have reason for optimism and for concern. In Gonzales v. Carhart, (7) decided shortly after Chief Justice Roberts took his seat on the Court, he and the other four conservative Justices united to form a 5-4 majority that upheld the federal partial-birth abortion ban. (8) In addition, in Whole Woman's Health v. Hellerstedt, (9) the Chief Justice joined Justice Alito in dissenting from the Court's decision to strike down Texas statutes requiring an abortion provider to have admitting privileges at a nearby hospital and requiring abortion facilities to meet the standards that apply to ambulatory surgery centers. (10) On the other hand, in June Medical Services, LLC v. Gee, (11) Chief Justice Roberts backed a stay against a Louisiana admitting privileges requirement similar to the one at issue in Hellerstedt. (12)

For several reasons, though, how the Chief Justice voted in Gonzales and Hellerstedt and with respect to the Gee stay is not particularly instructive when trying to gauge how he might vote in a direct challenge to Roe. First, the Court in Gonzales did not consider whether to overrule Roe. (13) Second, Justice Alito's dissent in Hellerstedt focused largely on procedural missteps Justice Alito believed the majority had made. (14) Third, the Chief Justice did not join Justice Thomas in Gonzales when he asserted his "view that the Court's abortion jurisprudence ... has no basis in the Constitution" (15) or in Hellerstedt when Justice Thomas declared that he "remain[ed] fundamentally opposed to the Court's abortion jurisprudence." (16) Finally, the Chief Justice's vote in Gee was for temporary relief and therefore signals nothing about how he might vote on the merits. (17)

Divining how Chief Justice Roberts might vote in a case challenging Roe becomes all the more difficult when one considers where he has stood in recent decisions featuring stare decisis, a Latin phrase meaning "to stand by things decided" (18) and a principle that directs courts to follow precedent absent a "special justification" for doing otherwise. (19) During his confirmation hearing, the Chief Justice emphasized that "overruling of a prior precedent ... is inconsistent with principles of stability and yet ... the principles of stare decisis recognize that there are situations when that's a price that has to be paid." (20) In two decisions handed down as the October 2018 term drew to a close, the Chief Justice was willing to pay that price; (21) in two others at the end of that term and a third during the Court's most recent term, he declined. (22)

Chief Justice Roberts was in the majority in all four rulings at the close of the October 2018 term. (23) Three of the cases were decided by a 5-4 margin. (24) In Franchise Tax Board v. Hyatt, (25) the Chief Justice joined his conservative brethren in overturning the Court's 1979 decision in Nevada v. Hall. (26) About a month later, the Chief Justice wrote the opinion for the same conservative majority in Knick v. Township of Scott, (27) a case in which the Court discarded Williamson County Regional Planning Commission v. Hamilton Bank, (28) which dated back to 1985. (29) Justice Breyer dissented in Hyatt and "wonder[ed] which cases the Court [would] overrule next." (30) Justice Kagan latched on to this in her Knick dissent, responding: "[T]hat didn't take long. Now one may wonder yet again." (31)

Just days after the Court released its opinion in Knick, however, Chief Justice Roberts allied with the Court's progressives in Kisor v. Wilkie (32) to uphold decisions from 1997 and 1945--Auer v. Robbins (33) and Bowles v. Seminole Rock & Sand Co. (34) Less than a year later, the Chief Justice once again exhibited a reticence to overrule precedent, pairing up with Justices Alito and Kagan to decry the 6-3 decision in Ramos v. Louisiana (35) that disposed of Apodaca v. Oregon, (36) a 1972 Sixth Amendment ruling. (37)

The Chief Justice's votes in Hyatt, Knick, Kisor, and Ramos evidence a complex and nuanced view about the place of stare decisis in our constitutional system. With these cases in the backdrop, eyes naturally turn to the Chief Justice when it comes to abortion. Indeed, his beliefs about stare decisis could prove critical to the continuing vitality of Roe and the right to choose that the Court recognized in 1973.

This Article examines Chief Justice Roberts's approach to stare decisis, attempting to identify matters that could prove important to him in evaluating Roe, but without offering a prediction about how he would vote in a case challenging the decision. Part I explores the Court's jurisprudence with respect to stare decisis since the Chief Justice took his seat on the Court, surveying how the Court has applied the principle in statutory, procedural, and constitutional contexts and describing important concurring and dissenting opinions that the Chief Justice either has written himself or has joined. Part II then attempts to distill from the Chief Justice's historical statements and positions on stare decisis particular matters that may influence his thinking about the principle in relation to Roe. In so doing, the Article highlights critical points for parties to address as they try to persuade the Chief Justice to vote one way or the other. Finally, the Article concludes that, to win Chief Justice Roberts's vote to overrule Roe, challengers will need to prove that Roe was "not just wrong," but that "[i]ts reasoning was exceptionally ill founded" (38) and that continuing to recognize a constitutional right to choose abortion would "do[] more damage to [the rule of law] than to advance it." (39)

The Chief Justice admitted in his confirmation hearing that "it is a jolt to the legal system when you overrule a precedent." (40) History tells us, however, that the Chief Justice believes fidelity to the Constitution is paramount and sometimes demands that the legal system absorb the shock. (41)

1. THE CHIEF JUSTICE'S HISTORICAL APPROACH TO STARE DECISIS

   Stare decisis is not a monolithic principle, as Chief Justice Roberts explained in his confirmation hearing. (42) It takes on "special force" with respect to a precedent that interprets a statute because, through subsequent legislation, Congress can remedy an erroneous ruling. (43) The principle is weaker, on the other hand, with respect to constitutional matters given that, absent Court action, correction usually requires the people to go through the onerous process of amending the Constitution. (44) But even these general parameters only go so far, for a weaker form of stare decisis applies when the Court interprets the Sherman Antitrust Act, (45) and according to Chief Justice Roberts, a stronger version applies in constitutional matters involving the dormant Commerce Clause. (46)

   In the Court's 2019 decision in Gamble v. United States, (47) Justice Thomas announced his view that, in applying stare decisis, the Court should consider only whether the prior decision is "demonstrably erroneous." (48) If it is, according to Justice Thomas, the Court should overrule the decision without considering other factors that might weigh in favor of retaining the precedent as a matter of policy. (49) The Chief Justice Roberts does not agree. Not only did he not support Justice Thomas's concurrence in Gamble, he spoke of the traditional factors underlying stare decisis in his confirmation hearing, (50) dissented from the Court's 2018 decision to overrule precedent in South Dakota v. Wayfair (51) even though he believed the previous cases were wrongly decided, (52) and voted in Kisor and Ramos to uphold Auer, Seminole Rock, and Apodaca, not based on the soundness of those rulings, but on the grounds of stare decisis alone. (53) If this were not enough, the Chief Justice made his view abundantly clear in Allen v. Cooper (54) by joining Justice Kagan's opinion for the Court, which explained that, "with th[e] charge of error alone, [one] cannot overcome stare decisis." (55)

   As the Chief Justice stressed in Citizens United v. FEC: (56) "Stare decisis is ... a 'principle of policy.' When considering whether to reexamine a prior erroneous holding, we must balance the...