Casting aside its precedents, Supreme Court moves inexorably toward those on abortion rights

WASHINGTON – When a fractured Supreme Court ruled this week that jury convictions for serious crimes must be unanimous, one word appeared nearly as frequently in the differing opinions offered by five justices as "jury."

That word was "precedent." And lurking between the lines was another word, mentioned just twice and only in footnotes: abortion.

Since 1973, the constitutional right to abortion has hinged on the high court's decision in Roe v. Wade, later modified but upheld in 1992. Before he was confirmed to the court in 2018 by the narrowest of margins, Associate Justice Brett Kavanaugh referred to those rulings as "precedent on precedent."

But in striking down a Louisiana prisoner's conviction and subsequent sentence of life without parole, the Supreme Court jettisoned yet another of its own precedents, established a year before Roe and a generation before 1992's Planned Parenthood v. Casey. Six justices agreed with the reversal.

For SCOTUS-watchers, it was but the latest indication that a more conservative court, focused first and foremost on the words written in the Constitution, is increasingly willing to reverse the work of its predecessors. And no issue hangs in the balance more than abortion.

"More and more of the justices are aware that they need to have a theory of precedent," said William Baude, a University of Chicago Law School professor whose recent treatise on the subject was cited by Kavanaugh in the Louisiana ruling.

Kavanaugh spent 18 pages laying out his theory for when precedent can be cast aside, one that hinges on three factors: a "grievously wrong" prior court decision and its negative consequences, set against the degree to which it has become relied upon.

"Some of the court’s most notable and consequential decisions have entailed overruling precedent," he wrote. Among them: landmark rulings on school segregation, same-sex marriage, campaign spending, defendants' rights – and abortion.

Even now, Kavanaugh argued, the court lacks "any consistent methodology or road map" for when to overrule precedent, which in turn "poses a problem for the rule of law and for this court."

Under Chief Justice John Roberts, the high court does not overrule itself often. But in 2018, it struck down a 1977 decision that allowed public employee unions to collect fees from nonmembers and a 1992 ruling that allowed retailers to sell goods tax-free beyond state borders. Last year, it overruled two more precedents, on court battles between states and on private property rights.

More: Supreme Court on the verge of reversing some of its old decisions

The lone justice to oppose all the attacks on Supreme Court precedent has been Associate Justice Elena Kagan. In a unanimous opinion in March involving states' immunity from copyright infringement lawsuits, she quoted from an earlier decision that called honoring the court's prior workmanship a "foundation stone of the rule of law."

Dissenters wonder: What's next?

Kagan was in the minority in the court's ruling on unanimous juries, which her fellow dissenter, Associate Justice Samuel Alito, wrote could prompt a "tsunami of litigation" in Louisiana and Oregon, the only two states with non-unanimous jury verdicts in dispute.

The majority opinion by Associate Justice Neil Gorsuch overturned the 1972 ruling in Apodaca v. Oregon. A single justice had cast the deciding vote for allowing non-unanimous verdicts in state, but not federal, courts. Gorsuch and just two colleagues said the fractured nature of that decision made it unworthy of precedential force.

“Even if we accepted the premise that Apodaca established a precedent, no one on the court today is prepared to say it was rightly decided, and "stare decisis" isn’t supposed to be the art of methodically ignoring what everyone knows to be true," Gorsuch wrote, using the Latin term for upholding precedent.

Even imperfect precedents routinely are preserved if society has come to rely on the consequences, however. In this case, Gorsuch reasoned that although Louisiana and Oregon will face litigation from defendants convicted by non-unanimous juries, that burden is sustainable. Other precedents, he acknowledged, have greater economic, regulatory or social reliance interests.

On which side of that ledger abortion rights falls remains to be seen.

Frederick Schauer, a University of Virginia School of Law professor who has written on Supreme Court precedents, said Gorsuch's opinion represents "a handbook for any justice who wants to not follow a previous case."

"It provides some degree of cover for a justice who says, 'I don’t like this opinion. Is there a reason why I don’t have to follow it?'" Schauer said.

Each time in recent years that the court has overruled precedents, dissenting justices – surely with abortion in mind – have wondered what high court chestnuts could fall next.

In the unanimous jury case, Alito wrote, "I assume that those in the majority will apply the same standard in future cases."

Last May, Associate Justice Stephen Breyer was more direct, raising the court's 1992 decision upholding the basic tenet of Roe v Wade. "Today’s decision can only cause one to wonder which cases the court will overrule next," he wrote.

When another precedent fell a month later, Kagan marveled: "Well, that didn't take long. Now one may wonder yet again."

Abortion 'in the tea leaves'

It won't take long to get at least some sense of the court's intentions regarding abortion.

The justices in 2016 struck down restrictions on Texas abortion clinics and doctors that a 5-3 majority said unduly burdened women seeking abortions. In March, Louisiana was before the court with a mirror-image case and two new justices sitting in judgment: Gorsuch and Kavanaugh.

More: Abortion clinics face critical test at Supreme Court

Even if that case doesn't produce the clear-cut victory sought by opponents of abortion, the steady drumbeat of challenges to state restrictions promises to send more cases the high court's way.

During oral argument in March, Breyer wondered, "Why depart from what was pretty clear precedent?"

Louisiana Solicitor General Elizabeth Murrill had a ready answer, arguing that in following Roe v. Wade, the court has come to rely on a "non-textual right."

"It is that much more important to get the text and the history right," she said.

Of course, it may be a long road from Louisiana's requirement that abortion clinic doctors have hospital admitting privileges to overruling Roe. The court's four liberal justices stand in the way, and Chief Justice John Roberts, who joined Alito's dissent in the jury case, prefers to move slowly. Kavanaugh's vote, even after his lengthy concurring opinion on unanimous juries, remains in doubt.

"One of the questions will be how does his theory apply to Roe, but I don’t think we know the answer to that yet," Baude said.

"Everyone wants to see abortion in the tea leaves on this one," Schauer said, but the battle over the importance of precedents isn't over. Just the recent intense focus, he said, "makes it harder for any justice to ignore it completely."

This article originally appeared on USA TODAY: Abortion: Does Supreme Court approach to precedent risk Roe v. Wade?