I was naïve when I entered law school, believing that I was going to learn the law.
Assuming those gold and red-spined law books adorning the offices of lawyers and judges concealed the foundational, irrefutable principles of justice, I expected to learn legal incantations to thwart injustice like a student learning magic at Hogwarts Academy.
Subsequently, I have learned that there is no such thing as “the law”; no definitive spell to ward off evil. Sure, we have a federal constitution, state constitutions, statutes passed by legislatures and appellate court rulings.
Yet, truth be told, there are no absolute precepts in law, no bedrock foundation.
Rather, the law is evolving, a meandering river with far-reaching tributaries. Thus, our adversarial legal system offers ample opportunity for black-letter law, even within the Constitution, to be interpreted and recontextualized according to the litigants.
In truth, the legal profession invites, and necessitates, persuading flesh-and-gavel jurists whom many erroneously envision as dispassionate, unflappable and inhuman logicians.
In an attempt to minimize the potentially haphazard application of legal principles, the court relies on holdings from the body of related cases that have already been litigated.
On the rare occasion that the Supreme Court of the United States weighs in on a case with constitutional implications, there is special significance.
The court does so in attempts to conjure that wisdom used to set the cornerstone of American democracy, hoping to create reliable bedrock for future generations to build upon.
We call those watershed cases, stare decisis – in Latin, “to stand by things decided.”
This background provides a topographical map of the academic battlefield where the issue of abortion is presently fought.
The Supreme Court heard oral arguments in early December 2021 in the case of Dobbs v. Jackson Women’s Health, a case litigating the constitutionality of legislation aimed at overturning the landmark cases of Roe v. Wade and Planned Parenthood v. Casey.
While Dobbs may settle the legal (though not societal) debate over abortion, the questions from the court during oral arguments clarified that their decision rests squarely on adherence to, or departure from, stare decisis.
In short, the court of predominantly conservative appointees is struggling between the following:
Uphold its own well-established line of cases expressly establishing the constitutional right to an abortion, while balancing a host of conflicting moral considerations; or, overturn Roe, Casey and related cases as a matter of pragmatism by reasoning backwards from the goal of protecting the unborn, but doing so with little to no legal precedent to support it.
The explicit precepts of American jurisprudence safeguarding our constitutional rights, stare decisis, are based upon the former. The latter is efficient but amounts to proof-texting.
If the court embraces a rationale wherein the ends justify the means, the law will be whatever the nine unelected, life-tenured justices of the Supreme Court say it is.
Clearly this choice could, and sometimes does, lead to absurd results. Even so, those seeking to overturn Roe could argue that it is worth it for what they perceive to be a noble cause.
Nevertheless, we would do well to recognize that circumventing stare decisis for a perceived greater good creates precedent for other constitutional rights to be challenged using similar methodologies.
For example, California’s Governor Gavin Newsom has vowed to use the “bounty” rubric of Texas’ recent abortion legislation as a framework for gun control.
Free speech, freedom of religion, the right to keep and bear arms, the right to vote – all of these emanate from stare decisis. Imagine, then, if the Supreme Court attempted to renounce them.
Consider, for example, what would happen if Brown v. Board of Education was struck down today, allowing racial segregation in our schools 67 years after its elimination.
In similar fashion, it would be reckless for the court to use Dobbs to rob women of a constitutional guarantee nearly 50 years after its creation.
Summarizing this concern, Justice Sotomayor opined during arguments: “The newest [abortion] ban that Mississippi has put in place, the six-week ban, the Senate sponsor said, we’re doing it because we have new justices on the Supreme Court. Will this institution [the Supreme Court] survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible.”
Regardless of our opinions of Roe and Casey, the decisions did not turn on a coin flip. Rather, thoughtful, articulate reasoning unearthed unalienable rights, empowering women to make the incredibly weighty decision of what is best for their bodies, their consciences and their families.
These considerations are worthy of our sober reflection and have potential to help unify our polarized society.
Perhaps understanding these intricacies will make it more difficult for politicians (and frankly, some clergy) to divide us or lead us by the nose with promises to do what the legal system does not enable them to do.
An author and attorney, practicing criminal and family law in the law firm of Callahan & King, PLLC, based in Waco, Texas. As a writer and advocate, he performs center stage in the three-ring circus of law, race and religion. Robert and his wife celebrate an interracial marriage, which has gifted them with three beautiful children, two demanding dogs and a mountain of student loan debt.