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.
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.
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.
Still, this most recent decision is disturbing, because in 2000, in a similar case, the Supreme Court struck down a Kansas partial birth abortion ban. The Kansas 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 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).
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.
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?
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.
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.
Charles Fried, a law professor at Harvard, was the United States solicitor general from 1985 to 1989.