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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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.