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Thursday, October 21, 2021

Ely, Roe, and the Wages of Judicial Recklessness

Will Baude has a new post on John Hart Ely’s fascinating precedent-based defense of Planned Parenthood v. Casey. Part of what makes Ely’s defense so interesting is that he had strongly criticized Roe v. Wade, arguing that it was “not constitutional law and gives almost no sense of an obligation to try to be.” You should read the whole post, including Will’s commentary, but I want to focus on this paragraph by Ely:

I don’t have a well-developed theory of stare decisis, that is, of when courts should defer to precedent rather than reconsider it afresh; I’m actually not sure anyone does. My fear, of course, is that I don’t think Roe should be overruled because I approve of it politically if not constitutionally, and there may indeed be something there. I also think, as the letter suggests, that Roe has contributed greatly to the more general move toward equality for women, which seems to me not only good but also in line with the central themes of our Constitution. I don’t think a principled opinion along those lines could have been written at the time— “We don’t know exactly how, but somehow this holding will importantly help undergird a more general movement toward women’s equality, which movement is mandated by the Constitution” obviously doesn’t make it—but I am clear that overruling it now would wreak havoc on that constitutionally legitimate movement.

Ely is not saying that Roe engendered reliance and so we are stuck with a legally meritless ruling. Rather, Ely seems to be describing a constitutionally good outcome that could not have been achieved through constitutionally good methods. How can that be?

Here is one possibility. The justices may have a general duty to promote constitutional “themes” or values, subject to the following side-constraint: they must credibly ground their decisions in relatively determinate and identifiable legal sources, like constitutional texts. This side-constraint might be essential to preserving the Court’s overall legitimacy, even though the side-constraint’s application in any given case would prevent full realization of constitutional values. In this way, the demands of legal reasoning and judicial craft would give rise to a kind of constitutional underenforcement.

That account can explain Ely’s dueling views. In the first instance, Ely thought Roe was wrong because it flunked the side-constraint. But if the ultimate effect of Roe was to enhance overall constitutional values, such as by promoting gender equality, then Casey would look quite different. Because stare decisis supplied the determinate legal source that Roe lacked, Casey could satisfy the side-constraint.

On this view, stare decisis operates primarily as a permission or enabler, rather than as a constraint. The fact of supportive case law essentially gives the Court access to a set of reasons that would otherwise be out of bounds. For Ely, direct reflection on constitutional “themes” evoked “fear,” namely, the fear of being “politically” motivated. A similar thought might help explain some pragmatic approaches to precedent. For instance, Justice Scalia famously cast stare decisis as an exception to the rule that the Court must eschew openly pragmatic reasoning.

But does this account really allow for Ely’s continued condemnation of Roe? Perhaps Ely should have come to view Roe as an exceptional act of genius: while the justices normally have to engage in cogent legal reasoning to reach good outcomes, Ely apparently believed that the Roe Court was able to skip that step and intuit a constitutionally optimal holding. And why should we evaluate moments of judicial inspiration based on rules meant for normal cases?

Still, I don’t think that Ely had to view the Roe Court warmly because of its assertedly salutary legacy. Instead, Ely or someone like him could make use of the distinction between a harmful action and a reckless one. If Roe was reckless in the sense of being a dangerous bet with long odds, then Ely could continue to criticize the Court and warn against similar rulings in the future—even as he celebrated the gamble’s long-term pay off. The permission that precedent afforded Casey would not necessarily apply elsewhere.

Posted by Richard M. Re on October 21, 2021 at 12:39 PM | Permalink


And yes, men suffer equally, with the loss of our beloved sons and daughters.

Posted by: Nancy | Oct 22, 2021 9:24:18 AM

The reality is this, all human life possesses equal human Dignity, because all human life is Created in The Image Of God, The Ordered Communion Of Perfect Complementary Love, The Most Holy And Undivided Blessed Trinity. We have been Created In The Image Of God, Who Is Perfect Life-affirming and Life-sustaining Love, to live our lives in Loving relationship, in Communion with God.

Human life is Sacred, and because human life is Sacred, we must protect human life from those who desire to do us harm.

“Any country that accepts abortion is not teaching its people to love, but to use violence to get what they want. That is why the greatest destroyer of love and peace is abortion.”

Abortion is profoundly anti-women. Three-quarters of its victims are women: Half the babies and all the mothers.

Yesterday is gone. Tomorrow has not yet come. We have only today. Let us begin.”

-Blessed Mother Teresa

Posted by: Nancy | Oct 22, 2021 9:20:41 AM

There's just something so sublime and appropriate about a continuing word-salad back and forth between El roam and Nutso Nancy. May it never cease.

Posted by: kotodama | Oct 21, 2021 9:57:47 PM

So Nancy, you do oppose then, death penalty also, right ? Please tell us....

Posted by: El roam | Oct 21, 2021 7:12:25 PM

So Nancy, how will or could the US, ever go to war then ? Surly, it would be in violation of the right to life.

Or, how police officers, would shoot offenders, sometimes, in order to kill them actually ?

Too many are dying due to lack of medicines in the US. What then ?

How would you reconcile it.....

You would say maybe, in order to protect lives of others. Really ? So, every war or military operation so far, conducted by the US, was in order to protect lives of American citizens ? From imminent danger let alone ? You will have to distinguish then, between different level of danger. Some imminent. Some not. What then ?

Posted by: El roam | Oct 21, 2021 6:32:15 PM

“I don't have a well-developed theory of stare decisis, that is, of when courts should defer to precedent rather than reconsider it afresh; I'm actually not sure anyone does.”

In regards to “preceding in Time, Order, Or Importance”, a “Right to Privacy”, could never trump a Right to Life, In fact , one cannot even argue that both are “competing Constitutional principles, because securing and protecting any of our inherent Unalienable Rights depends first and foremost on the securing and protection of our inherent Unalienable Right to Life from the start.

How can any Court claim that a right to privacy, justifies the destroying of the innocent human life of a beloved son or daughter. There is no precedent for that, nor can one invent precedent without denying that our inherent Right to Life, to Liberty, and to The Pursuit Of Happiness, are Unalienable Rights, which would change both the letter and the spirit of our Constitution, making our Constitution, in essence, unconstitutional.

Posted by: Nancy | Oct 21, 2021 5:36:22 PM


But, I don't really see, how stare decisis is the issue here.

Every constitutional principle, has typically, a competitor (means another constitutional principle). The duty of the judge, is, in light of given case, to grant more weight to certain principle, over the other, given the circumstances.

So, in the case of Roe, the court formed the following balance, between both competing constitutional principles:

On one hand the right to live. The right of the unborn baby or embryo to live. On the other, the right of one woman, to exercise her autonomy on her body and soul.

Both are constitutional principles, and both should be balanced in one given case.

The court decided, that up to certain initial period, the right of the woman, prevails. After that, the right of the unborn baby to live shall prevail (or rather, depends on the state legislator).

So, probably, seeing the results or outcome, Eli, decided, to grant more weight to the right of women. That is why probably, he has changed his mind. He has become more sympathetic with women and right for equality. In accordance, Roe represented for him maybe, the right balance.


Posted by: El roam | Oct 21, 2021 3:53:05 PM

Prof. Ely over his career criticized a "right to privacy."

For instance, as Chief Justice Warren's law clerk, he was critical of such a right as a grounds for Griswold v. Connecticut. He would, if necessary, be more supportive of a limited result. He referenced the equal protection aspects of Justice White's concurrence.

I have read both his "crying wolf" article & own the collection of writings referenced by the Volokh Conspiracy piece. It might be helpful to note that Prof. Ely also opposed the Hyde Amendment as a violation of equal protection. He had strong opinions on the subject of equality, including being an early support of gay rights.

The discussion is interesting because it suggests that difficulties of overturning precedent even if you disagree with the original decision. Doing so has various effects, including all that arose afterwards.

What happened afterwards here in part was development of equal protection precedent & Casey itself partially relied on equality. Which Prof. Ely himself was much more comfortable with.

Posted by: Joe | Oct 21, 2021 2:17:05 PM

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