Supreme Court values the personal over precedent, just like always

“I do not pretend to understand the moral universe, the arc is a long one, my eye reaches but little ways. I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. But from what I see I am sure it bends towards justice." — Theodore Parker, 1852

Last summer, I wrote a six-column series on the shifting ideology of the SCOTUS on the “right to privacy” in the due process clause of the Fourteenth Amendment to the Constitution over the last 100 years. In the first half of the 20th century, the Supreme Court sided with the “power of the state” and in the second half, they held the “power of the individual” nearly sacrosanct. After a deep-dive on cases involving medical choice, I naively came away with the sense that the trend toward increasing individual liberty in Supreme Court decisions reflected a collective maturation of both our nation and the highest court in the land.

However, the leaked draft opinion in Dobbs v. Jackson Women’s Health written by Justice Samuel Alito has left our nation reeling. For as long as I can remember, every Supreme Court nominee has been asked for their thoughts on the precedents set by Roe v. Wade and Planned Parenthood v. Casey. Many equated these decisions with “settled law,” falsely setting the minds of liberal Senators at ease. The real question in Dobbs v. Jackson seems more about what “precedent on precedent” actually means to the current court and maybe what precedent has meant to Justices throughout history?

First, we must look at the concept of stare decisis, a legal principle which means “to stand by things decided,” which refers to the extent which a federal court should feel “bound” by its own constitutional precedents. It turns out that stare decisis means little to Supreme Court Justices despite their claims to the contrary. In fact, research done by Jeffrey Segal and Harold Spaeth in 1996 found Supreme Court Justices adhere to precedent merely 20% of the time, while conceding to personal preferences 80% of the time.

Does this mean that the personal whims of five or possibly six justices hold the fate of American medical choice in their hands? Yes. That is exactly what it means. And in truth, it always has. We owe the mid-century liberal shift in judicial ideology to those Justices who leaned most heavily on their personal preferences. By relying on personal preference 100% of the time, Chief Justice Earl Warren sparked a venerable “constitutional revolution,” disregarding stare decisis entirely.

Of course, there are moments in history where hitting the constitutional “reset” button was unequivocally necessary. Rulings like Plessy v. Ferguson (1896) — which upheld segregation as constitutional — was so egregiously unjust that it simply had to be overturned by Brown v. the Board of Education (1954), which struck down racial segregation laws. Warren’s predilection for the expansion of individual rights brought us landmark decisions which changed the course of a nation, like Miranda v. Arizona (1966), regarding rights related to police questioning, and Loving v. Virginia (1967), which struck down state laws banning interracial marriage. But Roe has always been different.

The Roe v. Wade decision was simply a matter of serendipitous timing, a fact I never realized before.

Only seven justices were present when it came time to deliberate on Roe v. Wade because two vacancies remained unfilled. Justices Thurgood Marshall, William Brennan, and William Douglas — who voted according to personal preference more than 95% of the time — favored striking down the Texas abortion ban. The others were influenced by their own life experience. Justice Harry Blackmun had served as the general counsel to the Mayo Clinic in Rochester, Minnesota, advising the staff on the legality of abortions performed by the hospital prior to joining the Court. Having a great respect for doctors, Blackmun and Justice Potter Stewart based their decision on the right of doctors, not women, to exercise their professional judgment free of state interference. Justice Lewis Powell, who filled a vacancy on the court before Roe was decided, likely had a healthy respect for physicians (his father-in-law had been a prominent obstetrician.) But Powell’s pro-choice stance undoubtedly stemmed from an incident involving the loss of the girlfriend of one of his office staff at his Richmond law firm, who bled to death from an illegal self-induced abortion.

Our nation is facing a “conservative constitutional revolution,” where deference to the personal preferences of Justices Neil Gorsuch, Brett Kavanagh, Amy Coney Barrett, Clarence Thomas, John Roberts and Alito will favor the restriction of individual liberty. Justice Alito wrote, “the Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” He is right. Nearly 50 years ago, Justice Blackmun wrote, “This right of privacy…is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.” He was also right. What one Supreme Court found relevant then, another Court finds irrelevant today.

So, I return to my first column about medical freedom and the SCOTUS written last year and ask again whether or not we, as a nation, want the Judicial Branch of the United States government making medical decisions for us? I did not then. I do not now.

Because the moral arc of the Supreme Court does not always bend toward justice. Rather, it bends toward the political and religious ideology of each individual Justice serving at that moment in time. It always has. It always will.

Dr. Niran Al-Agba is a pediatrician in Silverdale and writes a regular column for the Kitsap Sun. Contact her at niranalagba@gmail.com.

This article originally appeared on Kitsap Sun: Niran Al Agba Roe v Wade Alito draft shows personal views