Chief Justice Charles Evans Hughes once said, “The Constitution means what the judges say it means.“ A better way to put it might be, “The Constitution is what a majority of five Justices say it is.” Or even more accurately, “The Constitution means what five Justices say it means until five Justices say it means something different.”
So, for example, in 1896 the Supreme Court decided in Plessy v Ferguson that the Constitution permitted segregation so long as the segregated facilities were “separate but equal.” In 1954, the Court held in Brown v. Board of Education of Topeka that separate educational facilities are inherently unequal. The Court was nearly unanimous the first time and unanimous the second, when it said just the opposite. The Constitution didn’t change during the intervening 58 years, the Court, and society, did.
Plessy is not the only wrongheaded decision in Supreme Court history. In Korematsu v. United States the Court upheld the relocation of Japanese-Americans from their homes to internment camps during World War II. Three years ago, in Trump v. Hawaii, the Court declared that the Korematsu decision was mistaken.
The Court doesn’t always take a half century or more, or a complete membership turnover, to recognize constitutional error. In 1986, in Bowers v. Hardwick, five Justices upheld a Georgia law that made consensual sexual acts between adults of the same sex a crime. Seventeen years later, in Lawrence v. Texas (2003), five Justices agreed that the similar Texas anti-sodomy law violated due process. Justice Kennedy, writing for the majority, didn’t mince words. “Bowers was not correct when it was decided, and it is not correct today.” (Justice O’Connor, who had been in the majority in Bowers, made it six, but on narrower grounds.) These “corrections” have a common theme. When the Court has recognized that an earlier group of five or more Justices has failed to apply the Constitution to protect personal human rights to equal protection, due process of law, and liberty, it has used its jurisprudential flexibility to make amends. That is a good thing.
What, then, of Roe v. Wade?
As everyone knows, that 1973 decision protects a woman’s right to have an abortion, subject to certain limits. What is less well known is that Roe was not a bare five-Justice decision. Seven members of the Court made up the majority. Nor was it the Court’s last word on the subject.
In Planned Parenthood v. Casey (1993), the Court changed the rationale from the Roe trimester analysis to one where governmental restrictions are permissible so long as they do not impose an “undue burden” on a woman’s right to a pre-viability abortion. The breakdown of votes was complicated, with four Justices ready to overrule Roe, meaning that five were not.
Among that latter group, Justices O’Connor, Kennedy, and Souter crafted a plurality opinion that affirms the “essential holding of Roe.” Their opinion includes these wise words: “Liberty finds no refuge in a jurisprudence of doubt.”
Last month, the Court agreed to review a Mississippi law that bans most abortions after 15 weeks, thereby erasing the viability threshold (around 24 weeks) established in Roe and upheld in Planned Parenthood. The case, Dobbs v. Jackson Women’s Health Organization, will test not only the Court’s existing abortion jurisprudence but also whether respect for precedent, known as stare decisis, will yield to the originalist inclinations, or personal predilections, of at least five current Justices.
2 This is not like Plessy or Korematsu or Bowers, all of which denied important individual liberties. Rather, this is about conflicting values and beliefs, in other words cultural disagreements. Before jumping too quickly, the Court would do well to go back to the O’Connor-Kennedy-Souter explanation of why following precedent usually makes sense, particularly so when it comes to the issue at hand.
Those three Justices noted that the Roe decision, while not universally popular, “has not been unworkable;” that an “entire generation” (remember, this was in 1993) has come of age understanding that liberty includes the right of women to make reproductive decisions; and that no “erosion of principles” has occurred that would leave the Roe v. Wade holding “a doctrinal remnant.”
I appreciate the views of those who are opposed to abortion. Their beliefs, often if not always grounded in sincere religious faith, are entitled to respect, and the same can be said about other controversial rulings. People who think non-sectarian prayer should be allowed in schools, or who consider marriage to be the union of a woman and a man, are entitled to express their opinions. They have a constitutional right to promote constitutional amendments.
Still, a “jurisprudence of doubt” does none of us any good. It is one thing for the Court to decide that racial discrimination, anti-Japanese sentiment, and laws prohibiting consensual adult relationships have no place in our heterogeneous society. It is quite another to turn the Constitution into a vacillating document whose meaning depends on the untethered whims of five Justices.