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Why a case about jury verdicts could spell trouble for Roe v. Wade

Only two did — Oregon and Louisiana, allowing convictions if 10 of 12 jurors agree — and Louisiana last year abandoned the practice. So while the decision matters enormously to those found guilty under such arrangements, its broader impact is limited.

The more interesting — and perhaps ominous — aspect of the case is what it says about the justices’ approach to overturning precedent. The 6-to-3 outcome was about as scrambled as imaginable. Six justices agreed on the result, but that took four opinions outlining different rationales and featured a strange-bedfellows assortment that ranged from the most conservative justice, Clarence Thomas, to the most liberal, Sonia Sotomayor.

A similarly unexpected coalition of three justices — Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr. and Elena Kagan — dissented, not necessarily because they thought the Constitution permits non-unanimous juries but because they thought the 1972 case should not be so lightly overruled.

“The doctrine of stare decisis gets rough treatment in today’s decision,” Alito wrote, referring to the doctrine that instructs courts not to lightly abandon precedent. “Lowering the bar for overruling our precedents, a badly fractured majority casts aside an important and long-established decision with little regard for the enormous reliance the decision has engendered. If the majority’s approach is not just a way to dispose of this one case, the decision marks an important turn.”

And that — a simmering intramural debate over when to stick with precedent and when to jettison it — is what makes Ramos v. Louisiana so notable. The court’s newly bolstered conservative majority means that many contentious decisions could be in jeopardy. In particular, the future of Roe v. Wade is, to borrow Justice Oliver Wendell Holmes Jr.’s phrase, “a brooding omnipresence in the sky.”

The newest justice, Brett M. Kavanaugh, took the opportunity to write a separate, 18-page concurrence. Perhaps this is unsurprising, Kavanaugh’s effort to work through an issue that is new to him. In his previous role, as a federal appeals court judge, Kavanaugh’s responsibility was to follow precedent. Overruling cases was not in his job description.

Now it is — indeed, he voted to do so three times during his first term. So it is impossible to read Kavanaugh’s concurrence without trying to discern what it foretells about his approach to Roe, and, if you support abortion rights, without apprehension. Kavanaugh pointedly noted that “in just the last few terms, every current member of this court has voted to overrule multiple constitutional precedents.” Indeed, he added, “some of the court’s most notable and consequential decisions have entailed overruling precedent,” citing 30 cases to prove the point.

Kavanaugh then sketched out a three-part approach to deciding when a case should be overruled: First, “is the prior decision not just wrong, but grievously or egregiously wrong,” including “the quality of the precedent’s reasoning.” Second, “has the prior decision caused significant negative jurisprudential or real-world consequences,” including “real-world effects on the citizenry.” Third, “would overruling the prior decision unduly upset reliance interests” — how much people have based their arrangements on it and how long it has been in place.

It is not hard to imagine that Kavanaugh, if called on to weigh the future of Roe, would find the first two criteria — egregiously wrong and causing significant negative consequences — easily satisfied. Must all three be present for a case to be overruled? On that he is not clear.

What to make of the odd trio of dissenters? For Kagan, who clearly sees the writing on the wall not just for Roe but for other rulings as well, the importance of adhering to precedent has been a continuing theme. The more she can get conservative colleagues on the record resisting overturning cases, and the more she demonstrates her own willingness to stick with cases she dislikes, the stronger her hand down the road.

But advance planning works both ways. In a section of the dissent that Kagan did not join, the two conservative dissenters seemed to be sending a tart message to their liberal colleagues. “By striking down a precedent upon which there has been massive and entirely reasonable reliance, the majority sets an important precedent about stare decisis,” Alito wrote. “I assume that those in the majority will apply the same standard in future cases.”

Actually, assume nothing — except that this is just the latest round in high-stakes judicial jousting that is certain to continue, if not intensify.

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