The Magazine

What Would Lincoln Do?

A test for the Roberts Court.

Oct 16, 2006, Vol. 12, No. 05 • By MICHAEL STOKES PAULSEN and RICHARD W. GARNETT
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THE ROBERTS COURT has begun its 2006-07 session, and already on the docket are hot-ticket cases involving the use of race in school admissions, the use of child-victim statements in criminal-abuse cases, and the federal government's obligation to regulate greenhouse gases. But the case that may define this term is the Court's reconsideration of the grisly practice known as partial-birth abortion.

For as long as Americans have known about the several thousand partial-birth abortions performed each year, they have--by comfortable and consistent margins--agreed with the late senator Daniel Patrick Moy nihan that "[the procedure] is infanticide, and one would be too many." Nevertheless, the Supreme Court declared six years ago in Stenberg v. Carhart that Nebraska's effort to ban this particular late-term abortion method violated the right to abortion that was manufactured in the 1973 Roe v. Wade case.

Congress responded with a ban of its own, one that was designed to satisfy the standards set out in Carhart. But this effort, the federal Partial-Birth Abortion Ban Act of 2003, has now been rejected by lower federal courts. The question before the Court now, in Gonzales v. Carhart and Gonzales v. Planned Parenthood, is whether the justices will permit us to regulate this procedure, which revolts Red and Blue America alike.

According to the editors of the New York Times, these cases are not so much a test of the justices' commitment to democratic self-government as they are a chance for the Court's "solidly conservative majority" to prove (to the Times) "what sort of conservatives they intend to be: those who issue rulings to match their personal ideology, or those who want to keep the court on a steady path by respecting precedent." During their confirmation hearings, the Court's newest members--Chief Justice John Roberts and Justice Samuel Alito--both professed humility and respect for precedent. The Times wants to know: Were they telling the truth?

In fact, the justices could probably uphold the federal ban without reversing the Stenberg decision. But they shouldn't. The Court's time and constitutional powers would be better spent, and the rule of law better served, if Stenberg were simply abandoned.

What about stare decisis, though? Don't the editors at the Times have a point when they urge deference to precedent? Of course they do. It is eminently sensible for courts to stick with settled decisions, absent special and strong justification. But the doctrine of stare decisis, properly understood, is not an inexorable command of blind, unquestioning adherence to the most recently decided case. It is not, as Justice Frankfurter once put it, the "imprisonment of reason." It is, instead, a principle of judicial policy, a flexible, practical idea that leaves plenty of room for discretion as to how it should be applied in any given set of circumstances.

Abraham Lincoln understood this well. In 1857, Lincoln was a candidate for the Senate. He was confronted often with the argument that stare decisis required deference to the Court's now-infamous decision in the Dred Scott case. The future president wasn't buying it:

We believe . . . in obedience to, and respect for the judicial department of government. We think its decisions on Constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country, subject to be disturbed only by amendments of the Constitution as provided in that instrument itself. More than this would be revolution. But we think the Dred Scott decision is erroneous. We know the court that made it has often overruled its own decisions, and we shall do what we can to have it to overrule this . . . .

If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.

But when, as it is true, we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country . . .