Ken Garten: In the law, precedent and order matter

Staff Writer
The Examiner
The Examiner

Few issues create more fervent and bitter controversy and discord than abortion.

Ever since the Supreme Court held in 1973 that abortion was a constitutional right in Roe v. Wade, political battles between the pro-life and pro-choice forces have played out in the legislative, regulatory, and judicial systems of government, as well as the streets, sidewalks, driveways and entryways leading to abortion clinics around the country.

One way this plays out is state legislation that imposes costly and cumbersome administrative and medical requirements on abortion providers based on purported health and safety considerations that have the effect of reducing the availability and number of abortion clinics and abortions; and pro-choice proponents who challenge those laws in the courts as unconstitutionally abridging the constitutional right to abortion first recognized in Roe.

This whole scenario was bandied about in the Supreme Court of the United States in a case decided last week that has some pro-life proponents expressing outrage.

The case is June Medical Services v. Russo, in which the Supreme Court in a 5-4 decision struck down a Louisiana law that set forth certain cumbersome and challenging medical and administrative conditions for abortion clinics in Louisiana, and thereby, the Supreme Court held, unconstitutionally denied access to the constitutionally protected right to abortion for the women of Louisiana.

Chief Justice John Roberts, a Republican appointee, and long considered a conservative justice, voted with the so-called liberal bloc of the court – Justices Breyer, Ginsburg, Sotomayor, and Kagan – and his concurring opinion illustrates what I believe to be the correct philosophy, role and function of the judiciary, as compared with the legislative branch of government.

June Medical Services v. Russo is essentially like a Texas case decided by the court in 2016 where an almost identical statute was held to unduly restrict the right to abortion in Texas and was struck down. In that case, Chief Justice Roberts sided with the conservative minority that voted to uphold the Texas restrictions, but came up short in the Supreme Court. And so the statute was declared unconstitutional.

Now, four years later, the makeup of the court has changed, with two new Trump appointees. And so, the politician/legislator’s approach to political power and decision-making in government was: “Let’s try again for a new vote with these justices, and get the abortion issue in front of the court again.”

But this time around our Chief Justice Roberts, in his concurring opinion, switched to join the more liberal members of the court in striking down the abortion law in this case, aptly framed his mode of analysis as: “I joined the dissent in (the 2016 Texas abortion case) and continue to believe that the case was wrongly decided. The question today however is not whether (that case) was right or wrong, but whether to adhere to it in deciding the present case.”

You see, judges do not think like legislators in regard to decision-making. Judges are bound to follow legal precedent. It’s called “stare decisis”.

As Justice Roberts stated in his concurring opinion: “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. … Therefore Louisiana’s law cannot stand under our precedents.”

“Adherence to precedent is necessary to avoid an arbitrary discretion in the courts.”

“The constraint of precedent distinguishes the judicial method and philosophy from those of the political and legislative process.”

“The doctrine also brings pragmatic benefits. Respect for precedent promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. It is the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. ... In that way, ‘stare decisis’ is an old friend of the common lawyer.”

And so it is. The legislative process tends to be about accumulating votes, power and leverage and forcing change on the issues one favors. The judicial process is about the “evenhanded, predictable, and consistent development of legal principles.”

Chief Justice Roberts has been roundly criticized as a turncoat by pro-life politicians for his opinion on this issue. But I would match his integrity, intelligence, credibility and understanding of the role of the judiciary against any of those who would undertake to criticize him.

Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com.