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 . . .

Lincoln's response is both compelling and instructive. Sometimes, it may make sense for judges to defer to misguided precedents. This does not mean, though, that wrongheaded interpretations of the Constitution are exempt from reconsideration. It is no insult to the rule of law, and entirely consistent with stare decisis, to insist that judicial readings of the Constitution may be revisited and revised. Only when a decision has been "fully settled," through judicial reaffirmation and public acceptance, does it become a part of the fabric of the law. Remember, even though Plessy v. Ferguson (1896) was on the books, and followed by courts for more than a half a century, it remained deeply contested and thus unsettled. The Court's decision, in Brown v. Board of Education (1954), finally to reconsider and reject it was fully consistent with Lincoln's views.

Lincoln appreciated, as have the justices, that courts' decisions "are of greater or less authority as precedents, according to circumstances." He noted, for example, that "it is relevant whether the decision is one of extremely long standing, such that its rule has become entrenched in established practice." Similarly, the Court agrees that the force of precedent is strongest when public institutions, or private reliance interests, have grown up around a decision. It mattered to Lincoln whether a decision--particularly a relatively recent one--had commanded unanimous or near-unanimous support within the Court. And he thought it was important to ask whether a questionable decision had nevertheless been "affirmed and re-affirmed through a course of years." A lack of sustained judicial embrace of a questionable doctrine weighed heavily, in his view, against according that doctrine the strong deference of stare decisis.

The application of Lincoln's views to Stenberg, and to the Court's upcoming partial-birth-abortion cases, is clear. Stenberg did not reflect "the unanimous concurrence of the judges," but was a hotly contested 5-4 decision from which even Justice Kennedy--who continues to believe that the Constitution protects a right to abortion--vigorously dissented. In addition, and to put it mildly, Stenberg is not "in accordance with legal public expectation" and "the steady practice of the departments throughout our history." Rather, it is a still-recent and tendentious departure from prior decisions of the Court. It certainly has not received the approbation of the other departments of government. And this six-year-old decision has not--again quoting Lincoln--been "before the court more than once" or "affirmed and re-affirmed through a course of years."

Contrary to the ruling in Stenberg, nothing in our constitutional text, history, tradition, or structure supports, let alone compels, the conclusion that the American people may not affirm our commitment to decency and human dignity by rejecting partial-birth abortion. Nor does the judicial policy of stare decisis shackle the Court to such a horribly wrong precedent--be it Stenberg or Dred Scott.

Richard W. Garnett is a Lilly Endowment associate professor of law at the University of Notre Dame. Michael Stokes Paulsen is the McKnight presidential professor of law at the University of Minnesota. This article is adapted from their amicus curiae brief in support of the constitutionality of the federal ban on partial-birth abortion.