Column by Lang Keith

Move over, Messrs.
Plessy and Scott!

For well over a century two cases have been universally considered to be the worst decisions in the Supreme Court’s history: Dred Scott and Plessy v. Ferguson. On June 24th the case of Dobbs v. Jackson eliminated a woman’s constitutional right to choose set forth in Roe v. Wade. This egregious decision will doubtless join Dred Scott and Plessy, and thus create a Supreme Court-terribly-decided-case trifecta.

History buffs will recall that Dred Scott held that persons of African descent were not citizens and therefore had no rights and privileges under the Constitution. Not satisfied with that blockbuster holding, the Court went on to strike down the Missouri Compromise. Aside from its horrendous effect on rights of Blacks, Dred Scott’s trashing of the Missouri Compromise led directly to the Civil War by opening the floodgates for the expansion of slavery. The 1896 Plessy decision permitted segregation, which put a constitutional imprimatur on almost six decades of Jim Crow laws in the South and elsewhere. Justice Alito’s opinion in Dobbs falls within the notorious Dred Scott/Plessy pantheon primarily because: (1) it rewrites the until now well-settled principles of Stare Decisis (i.e., stick to previous decisions except in exceptional circumstances); (2) distinguishes relevant prior cases with reasoning that would make a first-year law student blush; and finally, (3) is the result, not of any change in the law, but merely the appointment of new judges.

The reason courts, especially the Supreme Court, follow the dictates of Stare Decisis was set out in 1932 by the great Justice Brandeis: it “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government both in appearance and in fact.” The Dobbs majority spends pages and pages on why it rejects the salutary concepts of Stare Decisis but it all comes down to one primary thesis — they think Roe was wrongly decided. In doing so they ignore Casey, the 1992 decision that specifically followed the dictates of Stare Decisis in reaffirming Roe, and point to no changed circumstances that traditionally have been the absolute prerequisite for the failure to follow controlling precedents. Essentially, the Court gutted Stare Decisis. No-one knows what they will do to other well settled constitutional protections with which they disagree as they have so cavalierly obliterated its restraints in Dobbs.

The right to use contraception, the rights to marry, and the right to have private sexual relations all are based on the same constitutional right to liberty as the right to choose protected under Roe v. Wade. But, says the Court, Roe must be overruled because the right to select an abortion is not “deeply rooted in history.” But neither are the rights listed above. Nevertheless Justice Alito and his cohorts assure us that nothing they did in Dobbs casts doubts on precedents that do not concern abortion. As the dissent in Dobbs correctly points out: how could that be? For example…”there was no support in American law for a constitutional right to obtain contraceptives. So one of two things must be true.

Either the majority does not really believe in its own reasoning, or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” And therein lies the fatal flaw in Dobbs. It is essentially a polemic, not a legal opinion, written by a lifelong opponent of the constitutional right to choose, and joined by five other Justices, many of whom have spent their legal careers denigrating Roe v. Wade and advocating for its reversal.

The only thing that has changed since Roe was decided in 1973 is the composition of the Court. In a dissent Justice Stevens once wrote that “even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the the rule of law itself, would prevent most jurists from endorsing such a dramatic upheaval in the law [by for example overruling Roe].” The Alito court has no such respect, and we can rightfully expect, as evidenced by their decision in Dobbs, that in the future we will be ruled by the proclivities of six Justices and not by well-settled principles of law. This must be the primary take away from Dobbs. The Court’s so-called conservative majority is now in full cry and decades of well-settled and relied upon law may well be obliterated by Justices with life-time appointments, free from the constraints of either the ballot box or of their own precedents.

Lang Keith is a graduate of the University of Virginia and its Law School. He served in the US Navy Submarine Force and was a partner in a Washington law firm. He was a Circuit Court judge in Virginia for eleven years before retiring to Cooperstown.