Well, Gorsuch is wowing America in the confirmation hearings. He does display a virtue of our president: Trump prefers appointees who look and sound the part. And Gorsuch is somewhere between Jimmy Stewart and Gregory Peck. In my limited circle of personal contacts, it’s pretty stunning how many hate Trump but are okay with Gorsuch.
I haven’t been following the hearings closely, partly because I have a job and partly because I don’t care if Gorsuch agrees me on any particular constitutional issue. He easily passes the character and competence standards on which all judicial nominees should be judged. Once he’s on the Court, it goes without saying, he’ll surprise us now and again.
On the issue raised by Senator Dianne Feinstein about Roe’s being properly regarded as a kind of super-precedent: The senator herself and the various commentators don’t seem to realize that Roe’s having “rare precedential force” as a “landmark decision” is the reigning precedent. That’s what the Court said in Planned Parenthood v. Casey.
The Court actually mentioned two such super-precedents: Roe and Brown v. Board of Education. In both cases, the argument goes, the Court meant to resolve a major national controversy, to, in effect, end constitutional conversation on the matter.
In the case of Roe, it’s also the case that women have come to organize their political and economic lives as free and equal participants with abortion as a back-up to birth control.
That means the Court couldn’t notice error in Roe, if error there was, without calling into question its own legitimacy. And so the standard for overturning that decision seems to be actually higher than beyond reasonable doubt.
The super-precedent idea reflects a more general principle of constitutional interpretation embraced by Justice Sandra Day O’Connor. Stare decisis become a more formidable consideration when people have gotten used to having been granted a right or privilege. Another example: She wrote the opinion in Grutter v. Bollinger upholding Justice Lewis Powell’s quirky and otherwise sketchy judgment in his Bakke opinion (with which no other member of the Court agreed) that diversity as an educational technique is the only purpose that justifies affirmative action or taking race (and so forth) into account in making admissions decisions. Our institutions of higher education had gotten used to operating under that doctrine and so let’s just stay with it, she came close to saying straight out. So she mainstreamed a doctrine that turns our attention away from a real national conversation about the justice of remedying the effects of past or present discrimination through race-based policies — and so helped turn “diversity” into a mendacious substitute for what’s really at stake under our Constitution.
With this way of thinking in mind, the Obergefell same-sex marriage decision quickly becomes a super-precedent. People have gotten used to it, and imagine the havoc caused if suddenly gays no longer had the right to marriage. In that case too, the Court clearly meant to bring a national controversy to an end.
To my mind, the suggestion might be that Roe and Bakke might have been illegitimate judicial activism when they were decided but that now it would be illegitimate activism to overturn them. This is a very convenient doctrine for deflecting attention from what the Constitution actually means.
It’s easy to criticize this line of thinking in a number of ways. For one, Roe isn’t much like Brown. The latter decision was unanimous, and any controversy it engendered disappeared as a national issue within a decade. On Roe, both the Court and public opinion remain divided. The Court tried but failed to bring a national controversy to an end. In that respect, Roe is more like Dred Scott, which tried and failed to unite the country around a pro-slavery interpretation of the Constitution.
And it’s far from clear that it’s the job of the Court to end national controversies over issues about which people can reasonably disagree, such as abortion or same-sex marriage or even, in the antebellum context, the place of slavery under the Constitution. Those issues are usually best resolved by legislative deliberation and often compromise.
Most importantly, the doctrine of the super-precedent is entirely a judicial invention with no constitutional warrant. The Court now is in no way obliged to honor it, although it can’t help but sometimes make prudential judgments about the effects of disruptive decisions.
It would have a calming effect on many Americans to be assured that some precedents can’t be revisited. And maybe the compromise would be best that allows same-sex marriage to be viewed as settled law while drawing the line at using that precedent to endanger religious liberty. That, of course, legislatures could readily do.
But the Court has to be guided by a genuine effort to discern how the Constitution is to be applied in a particular case, whatever the precedents might be.