Hello friends, and welcome back. 

I pretty much stopped writing since January. When your precious, charming, lovely, smart, witty daughter gets married and buys a house, you had better be there to help them make transition, or you have no purpose in life. I also got a part-time job at my true habitat, a local municipal golf course, so 2023 has been a bad year for my blogging.

Still, in the past year, I have managed to cross off a couple of items on my musical bucket list, and learned the guitar solos to Hotel California and Kid Charlemagne.  Maybe it's time to start posting videos?

Our legal journey can be summarized, so far, as follows: the Dobbs decision is a resultant of two primary vectors. These vectors are moral force and social experience. 

Applied through Reason during the course of Time, our common law system arrived in 2022 at a place where logic could lead, where apolitical imperatives could survive, a place where -- after 50 years in the jurisprudential wilderness -- our nation highest court signalled the merit of reading and following the U.S. Government User's Manual that begins "We the People."

Conscience (Part 1) and Culture (Part 2), refracted through Lessons of History (Part 3), brought the Supreme Court of the United States to this milestone opinion on June 24, 2022.

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In Part 4, we discuss the legal doctrine upon which I think the Dobbs case truly turns. That doctine is neither Privacy, nor Federalism, nor is it States's Rights, as some would have you believe, Nikki Haley.

Rather, it is a pet doctrine of Chief Justice John Roberts, whose legal instinct is to seek to preserve the  institutional integrity of the court with strong deference to a principle called "Stare Decisis" (STAH-ray Deh-CY-sis), or, as I like to call it -- "Poking the Bear."

The 50+ year legal debate over the existence or non-existence of abortion "rights" has culminated with the recognition in Dobbs that, as with the numerous instances listed in footnote 48, SCOTUS is a HUMAN institution. 

Not being perfect, we seek the more perfect.

Because we acknowledge imperfection as an intrinsic human quality, legal writer Eric Segall asserts that the Court's past errors, albeit corrected through footnote 48 types of subsequent rulings, nevertheless render SCOTUS opinions as "non-legal." Segall further asserts that SCOTUS is not a Court and its Justices are not Judges. 

In other words, though we are imperfect, Seagall takes the position that making wrong legal decisions, invalidates all future and other decisions, legally speaking. Hmm.

Sorry, Eric, you missed the point. Several logical fallacies arise from dismissing the Court's legitimacy, discounting their opinions because they historically, though rarely, reverse an opinion. Ad hominem, False Cause, Genetic Fallacy, Straw Man, Non Sequitur, and Hypothesis Contrary to Fact are the most obvious fallacies of Mr. Segall's opinion. That's just for starters.

If anything, lawyers (the good ones) should take solace in the fact that, SCOTUS can and occationaly does, reverse itself.

“Let us realize the arc of the moral universe is long but it bends toward justice.” 

-- MLK

OK. King might not be the best person you would want to quote, but the principle is one that I believe, which is that reversing a Supreme Court decision, like it or not, indeed, bends the arc of the moral universe.

Alarmists could call it bad karma. Others, divine retribution. Petty political operatives, revenge. 

How about calling it a course correction?

As "A Nation of Laws, and Not of Men," seeking Justice, however idealistic, is the preferrable and most sane way to fix things, to right wrongs, and to teach us how best to coexists as human beings.  The members of the Supreme Court aren't called "judges." And to whatever extent my tin foil hat, conspiracy theory espousing, anti-colonial, libertarian tendencies are suppressed, all we have is our fellow citizens doing the best they can to survive, and perhaps, thrive.

They are called "Justices." There is Reason for that.

***

Stare decisis is the legal doctrine that preserves the status quo, or rather, the proper status quo. It is a heavy legal presumption that rests on respect, to promote integrity in an institutional setting. Yes, it also rests on an element of faith, a reliance on the correctness of past decisions and their social impact. It is a colloquial acceptance of the general idea that "If it ain't broke, don't fix it."

Real life tells us, of course, that our past is chock full of bad, or at least flawed, decisions.

Dobbs is a remarkable legal opinion precisely because it overcomes the institutional inertia, as well as the mass effect of the political barriers imposed by stare decisis. At the same tiime, the opinion provides future guidelines for jurists, showing us how to proceed when faced with demonstrably erroneous and poorly reasoned legal opinions such as Roe v. Wade.

HERE IS WHAT THE COURT ACTUALLY SAID, verbatim [jargon and citations edited]:

"We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey. Stare decisis plays an important role in our case law, and we have explained that it serves many valuable ends. It protects the interests of those who have taken action in reliance on a past decision. [Citations omitted]. It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.”[Kimble] It fosters “evenhanded” decision making by requiring that like cases be decided in a like manner. [Payne] It “contributes to the actual and perceived integrity of the judicial process.” [Ibid.] And it restrains judicial hubris and reminds us to respect the judgment of those who have grappled with important questions in the past. “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.” [emphasis added, citing Gorsuch article].

We have long recognized, however, that stare decisis is “not an inexorable command,” [Pearson] and it “is at its weakest when  we interpret the Constitution,” [Agostini]. It has been said that it is sometimes more important that an issue“ ‘be settled than that it be settled right.’ ” [quoting Brandeis 1932 dissent]. But when it comes to the interpretation of the Constitution — the “great charter of our liberties,” which was meant “to endure through a long lapse of ages,” [Hunter’s Lessee] — we place a high value on having the matter “settled right.” In addition, when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake. An erroneous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend. [Article V]. Therefore, in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions.

Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown v. Board of Education, the Court repudiated the “separate but equal” doctrine, which had allowed States to maintain racially segregated schools and other facilities. In so doing, the Court overruled the infamous decision in Plessy v. Ferguson, along with six other Supreme Court precedents that had applied the separate-but-equal rule. In [1937], the Court overruled Adkins v. Children’s Hospital of D. C., which had held that a law setting minimum wages for women violated the “liberty” protected by the Fifth Amendment’s Due Process Clause. West Coast Hotel [v. Parrish] signaled the demise of an entire line of important precedents that had protected an individual liberty right against state and federal health and welfare legislation. [citing Lochner (holding invalid a law setting maximum working hours); Coppage (holding invalid a law banning contracts forbidding employees to join a union); and Burns Baking (holding invalid laws fixing the weight of loaves of bread)].

Finally, in West Virginia Bd. of Ed. v. Barnette, after the lapse of only three years, the Court overruled Minersville School Dist. v. Gobitis, and held that public school students could not be compelled to salute the flag in violation of their sincere beliefs. Barnette stands out because nothing had changed during the intervening period other than the Court’s belated recognition that its earlier decision had been seriously wrong.

On many other occasions, this Court has overruled important constitutional decisions. (We include a partial list in the footnote that follows.⁴⁸) Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country. No Justice of this Court has ever argued that the Court should never overrule a constitutional decision, but overruling a precedent is a serious matter. It is not a step that should be taken lightly. Our cases have attempted to pro-
vide a framework for deciding when a precedent should be overruled, and they have identified factors that should be considered in making such a decision.

In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the qualityof their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance." 

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Agree with it or not, our highest legal authority had to decide whether to poke the bear and disturb a well-established line of cases because multi-generational Justice demanded so. They risked the wrath of those wishing to preserve, protect, and defend mistakes of the past.

Why, after 50 years, did the Supreme Court reverse itself?  

Because the ruling in Roe was, in legal terms of art, "clearly erroneous."  

Clearly - without logically valid counter-argument. 

Erroneous - wrongly decided.

In other words, the Roe decision was so fucked up that -- despite the weight of stare decisis, despite majoritarian mass media pro-choice proscriptions, and despite physical threats of violence -- Conscience, Culture, Reason, Logic, and above all, the Constitution itself compelled the Court to restore balance and to repair the damage done to untold generations of American lives.

Analytically, the Dobbs opinion uses a five-factor test to help determine whether a Supreme Court case is "clearly erroneous", and therefore subject to being overruled:

• The Nature of the Courts Error
• The Quality of the Reaoning
• The Workability of the Decision
• The Effect on Other Areas of the Law
• The Reliance on the Court's Decision
  

I will not further elucidate. 

The majority opinion is thorough and complete, insofar as it details each of these factors, demonstrating (6-3) how false historical narratives were invented by the Roe opinion, how those narratives disregarded fundamental differences between an abortion "right" and a privacy "right." 

The only rational conclusion is that the nature of the error in Roe was so morally and culturally significant (as in Plessy, West Coast Hotels, and Barrett) that we had to reverse course. 

The concurring opinions suggest there is more work to be done.

Dobbs decimates the untethered reasoning in Roe -- its arbitrary tests, and its concocted rules regarding "viability" and "trimesters." The inconsistent line-drawing of Roe worsened in Casey v. Planned Parenthood, which wrongly applied stare decisis to affirm Roe, further diluting the "viability" question and jettisoning the "trimester" test for another unworkable standard -- the cost/benefit analysis of "undue burdens." 

In the future, my hope is that constitutional jurisprudence which drifts away, unmoored from cultural values, historical roots, and written foundations, will be met with greater resistance, resistance to the deceptions and injustices foisted by unprincipled or unethical lawyers who devalue themselves and cheapen their profession by acting as mere political operatives, with bad intent, harming families, and destroying psyches.

Yes. A long and winding road lies ahead. 

It has been a painful course correction, America.

The way things are looking, we had better hold on to our hats.

Happy New Year!

© 2024 by Roy Santonil