Harvard law professor Charles Fried has an op-ed column in today’s New York Times. He is so wrong and/or confused in so many ways that I must refute/correct him point by point and paragraph by paragraph. Here goes:
In supporting John Roberts’s nomination to be chief justice of the United States in 2005, I spoke to the Senate Judiciary Committee of his commitment to clarity, consistency and stability in the law—qualities that included respect for precedent, essential if the Supreme Court is to be the guarantor of legality under the Constitution and not an unnecessary third political branch of government.
As Professor Fried knows, having taught law for many years and served as Solicitor General of the United States, respect for precedent does not preclude the overruling of previously decided cases. If it did, then Lawrence v. Texas (2003), which explicitly overruled Bowers v. Hardwick (1986), would have failed to respect precedent. I doubt that Professor Fried would say as much. In fact, I suspect that he applauded the overruling. Respect for precedent is only one factor among many in deciding whether to overrule a previously decided case.
Senator Dianne Feinstein of California asked whether I thought a Justice Roberts would vote to overrule Roe v. Wade. I said I thought he would not, at least not in its later, less absolute version embodied in the 1992 Casey decision, which protected against governments imposing an “undue burden” on a woman’s right to choose abortion before the fetus’s viability. I told Senator Feinstein that the formulation, and the principles behind it, had become so deeply rooted—in the law relied on not only in abortion cases but by analogy in matters as widely disparate as the Texas homosexual sodomy case, compelled visiting rights for grandparents and the right to die—that its abandonment would produce the kind of violent unsettling of the law against which respect for precedent is meant to protect.
A mistake on which many people have relied for a long time is still a mistake. At most, there is a presumption against overruling previously decided cases, but presumptions, by their nature, are rebuttable. Mistakes that strike at the heart of human dignity, such as Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), are especially vulnerable to rebuttal, and hence to overruling. In any event, neither Roe nor Casey was overruled in the recent abortion case, Gonzales v. Carhart (2007), so the issue is moot.
The next year, when I testified in support of Samuel Alito, Senator Feinstein asked me the same question. I gave the same answer.
Justice Anthony Kennedy’s decision for the court in the abortion case last week does not change my mind, because the procedure that was banned, intact dilation and extraction, is too rarely used and its importance too dubious to make much difference.
Exactly, so what’s the problem?
Still, this most recent decision is disturbing, because in 2000, in a similar case, the Supreme Court struck down a Nebraska partial birth abortion ban. The Nebraska law was unacceptably vague, but the principal reason for the court’s earlier decision was that there was responsible medical opinion that sometimes the procedure was less risky for the mother, and therefore in such cases the ban posed an undue burden. The federal ban cured the vagueness, but sought to overcome the medical testimony by a legislative proclamation of a fact that is not a fact: that the procedure was never safer for the mother.
The key word here is “similar.” As a former associate justice on the Supreme Judicial Court of Massachusetts, Professor Fried knows that two cases can be similar in some respects but different in others. All it takes is one relevant difference to justify different decisions (i.e., to avoid contradiction). The majority in Gonzales noted several relevant differences between Stenberg v. Carhart (2000) and Gonzales. One such difference, as Professor Fried notes, is that the statute in Stenberg was vague. The statute in Gonzales is not vague, or at least not unconstitutionally so (by the Court’s traditional standard).
The decision is disturbing because the court has on numerous occasions refused to allow Congress to overturn constitutional law by bogus fact finding, notably in decisions invalidating the Violence Against Women Act (which Justice Kennedy joined) and the Religious Freedom Restoration Act (which Justice Kennedy wrote).
Bogus fact finding? The majority in Gonzales bent over backward to show that there is a disagreement among medical professionals about the comparative safety of D&E (which is not prohibited by the statute) and intact D&E (which is). As the Court put it, “There is documented medical disagreement whether the Act’s prohibition would ever impose significant health risks on women.” The Court has never held that unanimity on factual matters is required before Congress may legislate. “The Court,” Justice Kennedy wrote, “has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” There follow seven citations. How’s that for respecting precedent? Professor Fried makes it sound as though this issue was not discussed. It was thoroughly discussed, and, in my opinion, cogently argued.
It’s disturbing because Justice Kennedy fails to come to grips with his own jurisprudence, going so far as to say that because Congress was acting under its power to regulate interstate commerce, it needed only a rational basis to justify its decision. Where a fundamental right is involved, such an explanation is evidently wrong.
Professor Fried hasn’t been keeping up with the law. In 1992, the Supreme Court (in Casey) abandoned fundamental-rights analysis in abortion cases. That, and not a desire to reach a certain result, is why Justice Kennedy didn’t analyze Gonzales in those terms. I recommend that Professor Fried read both Casey and Lawrence.
It’s also disturbing because Justice Kennedy was not quite willing to embrace his own conclusion. He suggested that perhaps as applied in a particular case in which there was an increased health risk the ban might be unconstitutional after all. What can that mean? The very complaint here was that the ban was unconstitutional because it applies in just such situations. Does the court contemplate a surgeon pausing in the midst of an operation in which he determines the banned procedure might be less risky, and seeking a court order?
Has Professor Fried read the opinion? No argument was made in this case that the statute is unconstitutional as applied. The argument was—and the appellate courts ruled—that it is unconstitutional on its face. The majority applied its usual standard for such challenges. This may disturb Professor Fried, but there’s nothing disturbing about it. As for Fried’s surgeon (?) example, the Court addressed it squarely: “The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained. . . . This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used. In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack.” As a former justice on a state supreme court, Professor Fried should know how this process works.
Finally, the decision is disturbing for a more far-reaching reason: there are indeed cases where the court in the last few years had become truly incoherent, largely as a result of Justice O’Connor’s pragmatic and underexplained abandonment of positions she had earlier agreed to or even proclaimed on affirmative action and campaign finance. The first issue has been argued and will be decided this term of court; campaign finance is being argued this week.
I agree that Justice O’Connor’s jurisprudence is incoherent. Pace Professor Fried, Gonzales is not. That he doesn’t like the ruling doesn’t mean that it’s incoherent.
If the justices eliminate the confusion and restore principle in those areas, the cry will go up that the court is simply reflecting its changed political complexion, not reasoning carefully and promoting stability and clarity in the law. And last week’s decision will lend plausibility to that charge.
The charge is plausible only if there is no relevant difference between Stenberg and Gonzales; but, as the Court took pains to demonstrate, there is. And why does Fried believe that the Court’s political complexion has changed? Its membership has changed, to be sure, but the new members of the Court may be principled and law-abiding, whereas the previous members were unprincipled and lawless. The majority in Gonzales, in other words, is “restoring principle” in abortion jurisprudence. It’s common for those who don’t like particular Supreme Court rulings to say that they’re merely political decisions, for that delegitimizes them. That’s not the only possibility, of course. Another is that the rulings are in accordance with law, though not with the critic’s ideological agenda. If anyone is politicized here, it is Professor Fried.
Addendum: Here is law professor Robert Araujo’s commentary on Gonzales.