THERE'S NOTHING "SUPER" ABOUT ROE V. WADE.

• Author: Hatch, Orrin G.

INTRODUCTION

The "super precedent" argument is that Roe v. Wade is virtually immune from being overruled in the future because it has been reaffirmed so many times in the past. (4) Senator Arlen Specter (R-PA) presented this argument to three Supreme Court nominees before Senator Feinstein raised it in the Gorsuch hearing. On September 13, 2005, when he chaired the Judiciary Committee, Specter began his questions for Supreme Court nominee John Roberts by addressing "the issue of the woman's right to choose and Roe v. Wade." (5) His goal was to determine whether Roberts would, if confirmed, vote to overrule Roe. (6)

For as long as Supreme Court nominees have appeared before the Judiciary Committee, however, they have declined to discuss their views about issues that could come before them on the Court. The Judiciary Committee held its first public Supreme Court confirmation hearing in 1916. (7) Since then, 36 Supreme Court nominees have attended their hearings, (8) and 34 of them answered questions from committee members. (9) Of the 30 who were asked about their views on issues that could come before the Supreme Court, (10) 29 explicitly declined to discuss them. (11)

Perhaps anticipating that Roberts would take the same approach, Specter began "collaterally" (12) by discussing the "principles of stare decisis" (13) that the Supreme Court considers when deciding whether to overrule a precedent. Roberts discussed those principles generally (14) but declined to apply them to Roe v. Wade. (15) Failing to elicit Roberts' views about the validity of Roe v. Wade, Specter shifted to sharing with Roberts his own views on the subject by discussing "the concept of super-stare decisis." (16)

Specter used a chart titled "Supreme Court Decisions Upholding Roe v. Wade" (17) that, he said, listed "38 occasions where Roe has been taken up... with an opportunity for Roe to be overruled." (18) Specter asserted that by passing up these "38 chances to reverse it," (19) the Supreme Court had actually reaffirmed Roe v. Wade that many times, giving it the status of "super-duper precedent." (20) Later in the hearing, Specter went even further: "With the reaffirmation, [Roe v. Wade] may become a super-duper, or maybe even more, super-duper-duper [precedent]." (21)

Specter made the same argument a few months later to Supreme Court nominee Samuel Alito. On January 10, 2006, Specter again presented a chart listing "all 38 cases which have been decided since Roe, where the Supreme Court of the United States had the opportunity" to overrule it but did not do so. (22) Roe v. Wade, he said, is a particularly strong precedent because it has been "reaffirmed 38 times." (23) Alito declined to "get into categorizing precedents as super precedents or super duper precedents." (24)

On July 15, 2009, Specter presented the same argument to Supreme Court nominee Sonia Sotomayor. He stated "that the Supreme Court of the United States has had 38 cases after Roe v. Wade where it could have reversed Roe v. Wade" (25) and asked whether the Court failing to do so would "add weight to the impact of Roe v. Wade." (26) Sotomayor declined to address this issue specifically, saying only that "how the Court has dealt with [a precedent] in subsequent cases" would be one factor the Court would consider. (27) Asked whether the Court's decision in Planned Parenthood v. Casey, (28) which reaffirmed the "central holding" (29) of Roe v. Wade, was an example of "super-stare decisis," Sotomayor responded: "I don't use the word 'super.' I don't know how to take that word. All precedent of the Court is entitled to the respect of the doctrine of stare decisis." (30)

Senator Feinstein's statement in the Gorsuch hearing was the latest, but likely not the last, assertion of the "super precedent" argument, which has two premises. First, the argument says that each of these 38 or 39 cases properly placed "the Roe issue," (31) or the validity of Roe v. Wade as a precedent, before the Court as an issue for decision. Second, the Court's failure to overrule Roe in a given case constitutes an actual reaffirmance of the decision, strengthening Roe as a precedent of the Court and protecting it further from future reversal. This Article will apply the relevant principles of stare decisis to evaluate these two premises and the overall validity of the "super precedent" argument.

1. PRINCIPLES OF STARE DECISIS

   The phrase stare decisis means "to stand by things decided." (32) It identifies "the principle that a decision made in one case will be followed in the next." (33) This doctrine has consumed countless volumes of scholarship, commentary, and case law and has many different elements and dimensions. A recent tome on judicial precedent, for example, spans more than 800 pages. (34)

   When the Supreme Court decides whether to overrule a precedent, it applies what it calls "principles of stare decisis." (35) Four of those principles are relevant here. First, stare decisis is an important part of the judicial process designed by America's founders. As Alexander Hamilton wrote: "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents." (36)

   Justice Samuel Alito made this point during his confirmation hearing before the Senate Judiciary Committee. Stare decisis, he said, is a "very important doctrine" and a "fundamental part of our legal system... because it limits the power of the judiciary." (37) Citing Hamilton, Alito explained that limiting the exercise of judicial power is "one of the important reasons for the doctrine of stare decisis." (38) Being "bound up by precedent... would keep them from injecting their own views into the decision-making process." (39)

   Avoiding arbitrary discretion also helps protect the judiciary's legitimacy. "The respect given the court by the public and by the other branches of government," wrote Justice Lewis Powell, "rests in large part on the knowledge that the Court is not composed of une-lected judges free to write their policy views into law." (40) It is "the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion." (41)

   The second relevant principle of stare decisis is that, while it is an "important doctrine" (42) and "a basic self-governing principle within the Judicial Branch," (43) it is "not a universal, inexorable command." (44) The Supreme Court has expressed this principle in different ways. Stare decisis is "a principle of policy and not a mechanical formula of adherence to the latest decision." (45) It is "a rule of stability, but not inflexibility." (46) While stare decisis may be described as "ordinarily a wise rule of action" (47) and the "preferred course," (48) it is "an aid" (49) and "a useful rule" (50) rather than an end in itself. Put simply, "[w]ith horizontal precedents--past decisions of the same court--nothing about stare decisis is absolute." (51) The doctrine "doesn't demand obedience to precedent without exception. It leaves room for courts to distinguish and overrule." (52)

   The third relevant principle of stare decisis is that "not all precedent is created equal." (53) The "precedential power" (54) of stare decisis depends on the category of case in which it is applied. (55) Professor Michael Sinclair describes the weight or authority given to precedents as determined by "damage control," (56) inversely related to the ease of correcting that decision. As a result, stare decisis "carries enhanced force when a decision... interprets a statute. Then, unlike in a constitutional case, critics of our ruling can take their objections across the street, and Congress can correct any mistake it sees." (57)

   Accordingly, the Supreme Court "is less reluctant to overrule a decision that involves constitutional interpretation rather than interpretation of a statute." (58) Justice Louis Brandeis noted in 1932 that "in cases involving the Federal Constitution, where correction through legislation is practically impossible, this Court has often overruled its earlier decisions." (59)

   The Court has described the principle this way: "In constitutional questions, where correction depends upon amendment and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions." (60) Stare decisis, then, "has only limited application in the field of constitutional law." (61) To date, the Supreme Court has overruled its constitutional precedents more than 200 times. (62)

   The final principle of stare decisis relevant here is that, as the Supreme Court said in 2015, "[t]here must be good reasons for overruling a precedent." (63) These reasons begin with "its correctness," but "the mere erroneousness of a prior line of precedent is generally not sufficient to overturn it." (64) Beyond that, the Court has "identified a cluster of factors... [that are] relevant to the decision whether or not to overrule a prior decision." (65)

   In Planned Parenthood v. Casey, the Court discussed "prudential and pragmatic considerations" when the Court "reexamines a prior holding." (66) These include whether a precedent has defied "practical workability" (67) or led to reliance that would make overruling it "a special hardship." (68) The Court will also consider whether facts or principles of law have changed so that the precedent is rendered "no more than a remnant of abandoned doctrine" (69) or "robbed... of significant application or justification." (70)

   Supreme Court nominees have discussed these factors during their confirmation hearings. In 2005, for example, Chief Justice Roberts used the phrase "principles of stare decisis" nearly forty times in his oral testimony and answers to post-hearing written questions. (71)

   During the hearing, he cited as relevant considerations "reliance by the people on the precedent" (72) or "settled...