With Roe at risk, justices explore a new way to question precedents

Roe v. Wade has had a rough two weeks at the Supreme Court.

On Dec. 1, at arguments over its fate in a case from Mississippi, the five most conservative justices showed no interest in doing anything short of overruling it.

Then, on Friday, those same five justices allowed a Texas law that bans most abortions after six weeks to remain in place and seemed to shut down any effective way to challenge it in federal court. That law, which has been in place since Sept. 1, is flatly at odds with Roe, which established a constitutional right to abortion and prohibited states from banning the procedure before fetal viability, or around 23 weeks of pregnancy.

A decision in the Mississippi case is not expected until late June. If the court overrules Roe, an increasingly real possibility, it will have to explain why it is departing from the principle of stare decisis, which is legal Latin for “to stand by things decided.”

At his 2005 confirmation hearings, Chief Justice John Roberts said the Supreme Court should be wary of overturning precedents, in part because doing so threatens the court’s legitimacy.

“It is a jolt to the legal system when you overrule a precedent,” he said, listing various factors the court must consider before it takes the momentous step of discarding a precedent. They include, the court has said, “the quality of the decision’s reasoning.”

At the argument in the Mississippi case, concerning a state law that bans most abortions after 15 weeks, the chief justice refined that factor in an apparent attempt to dampen the jolt to the system.

He suggested that the fetal-viability line established in Roe was not a crucial part of the decision’s reasoning. “Was viability an issue in the case?” he asked. “I know it wasn’t briefed or argued.”

In shifting the focus from what the court had done to what the parties in the case had asked it to do, the chief justice was trying to justify upholding a 15-week line while stopping short of overruling Roe entirely, which would allow states to make all abortions illegal.

Whatever his goal, though, shifting the analysis from the words of the opinion to the advocacy that gave rise to it is a recent development and yet another way to undermine precedents.

Richard J. Lazarus, a law professor at Harvard, explored this mode of argument in a recent article in The Supreme Court Review called “Advocacy History in the Supreme Court.”

The article makes the sensible point that a full understanding of a Supreme Court decision requires consideration of how the parties had framed the case.

In preparing for a Supreme Court argument in which an earlier decision plays a central role, sophisticated lawyers scour the briefs and the argument transcript in the earlier case.

“It’s a tool in the advocacy toolbox,” said Jeffrey L. Fisher, a law professor at Stanford and a director of its Supreme Court clinic. “Often the opinion is going to be the second- or third-most relevant and helpful source.”

Roberts’ question seemed to go further, suggesting that the meaning and weight of a decision may turn on the arguments that had been presented to the court.

In 2007, in an opinion limiting the use of race in assigning students to public schools to achieve integration, Roberts made a similar move. A key precedent in that case was Brown v. Board of Education, the 1954 decision banning racial segregation in public schools. The chief justice wrote that his 2007 opinion was “faithful to the heritage” of Brown.

He made his case by quoting from the original briefs in the case and from the oral argument in 1952. (Lawyers who had worked on the Brown litigation called the chief justice’s analysis “preposterous” and “100% wrong.”)

In 2008, in Justice Antonin Scalia’s majority opinion in District of Columbia v. Heller, which recognized an individual right to own guns under the Second Amendment, he discounted the leading precedent by focusing on its litigation history.

The defendants “made no appearance in the case, neither filing a brief nor appearing at oral argument; the court heard from no one but the government (reason enough, one would think, not to make that case the beginning and the end of this court’s consideration of the Second Amendment),” wrote Scalia, who died in 2016.

Lazarus said that it was one thing to look at the litigation history of a Supreme Court decision to understand it better and another to give it more or less precedential weight depending on what the lawyers had or had not argued.

Roberts’ question about Roe was in a sense irrelevant, as the significance of fetal viability had been thoroughly argued in Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe’s core holding.

That made Roe a “super-duper precedent,” Sen. Arlen Specter of Pennsylvania said at Roberts’ confirmation hearings. The chief justice did not adopt Specter’s terminology, but he did not quarrel with the senator’s larger point.

“The Casey decision itself, which applied the principles of stare decisis to Roe v. Wade, is itself a precedent of the court, entitled to respect under principles of stare decisis,” Roberts said, adding: “That is itself a precedent. It’s a precedent on whether or not to revisit the Roe v. Wade precedent.”

Lazarus said the court’s recent approach to precedent pointed in a different direction.

“Stare decisis, even for a case that has been referred to as super-precedent, is on the wane at the court,” he said. “And advocacy history plays a role.”