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Roe Casts Its Shadow Once Again

Chairman of the Joint Chiefs of Staff, Mark A. Milley, speaks with U.S. Supreme Court Associate Justices at the State of the Union address
From left: Chief Justice John Roberts and Justices Elena Kagan, Neil Gorsuch and Brett Kavanaugh at the 2020 State of the Union address. Photo by D. Myles Cullen, courtesy The White House.

Roe v. Wade continues to cast a large shadow over the U.S. Supreme Court’s daily work, as justices forge surprising short-term coalitions and bend their jurisprudence on topics far removed from abortion, apparently for strategic reasons.

A recent example is last week’s decision in Ramos v. Louisiana, in which the court ruled 6-3 that the Constitution requires a unanimous jury to render a criminal conviction in state courts. The decision overturned the court’s 1972 holding in Apodaca v. Oregon. In the intervening years, the older decision had allowed Oregon – and, until a state law change last year, Louisiana – to obtain convictions for murder and other serious crimes with the votes of 10 out of 12 jurors.

In the 1972 case, four justices held that the Constitution requires unanimous verdicts and four said it did not. Justice Lewis Powell split the difference by deciding that unanimous verdicts were required in federal courts but not in the states. All the current justices agreed that this conclusion was wrong, mostly on the basis that the Bill of Rights – including the Sixth Amendment’s right to a jury trial – is binding on the states. In last week’s majority opinion, Justice Neil Gorsuch wrote that the Constitution’s framers would have understood unanimity to be necessary for a jury verdict based on law and practice at the time.

But the current justices were split over the question of whether they should reverse the prior decision merely because it was wrong. This is a vital issue on the modern court, as a new wave of challenges to the abortion rights established by Roe bubble up through the lower courts.

One can search in vain for a theme or principle that determines when an individual justice, or the court collectively, will invoke the doctrine of “stare decisis” – the principle of letting prior case law stand even when it is thought to have been wrongly decided. Except, perhaps, for this: Every justice is a human being. They all come to the bench with personal backgrounds and biases. Each justice cares more about some issues than others. When they care more, they will invoke or reject stare decisis to suit their priorities; when they don’t, they will go with the flow and decide a case on its individual merits.

It is well known that the court is divided between conservative and liberal blocs, with the conservatives holding a 5-4 edge. But personal idiosyncrasies blur the edges of those blocs and produce surprising votes. On occasion, those idiosyncrasies sway the outcome of a major case (for example, conservative Chief Justice John Roberts’ swing vote upholding the Affordable Care Act in 2012).

Those idiosyncrasies were on display in Ramos. Gorsuch wrote the majority opinion and his fellow conservative Justice Samuel Alito wrote the dissent. Roberts and liberal Justice Elena Kagan joined Alito. The group voting with Gorsuch to overturn Ramos’ murder conviction in Louisiana, although somewhat divergent in their reasoning, included conservatives Brett Kavanaugh and Clarence Thomas, as well as liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

The rule in Oregon, and the recently changed rule in Louisiana, have ugly racist roots. Louisiana began allowing less-than-unanimous convictions during Reconstruction, after the U.S. Senate called for an investigation into whether the state was preventing African Americans from serving on juries. As Gorsuch observed, Louisiana hoped to neutralize black jurors’ influence without drawing national censure. Oregon adopted a similar rule in the 1930s, at a time of rising Ku Klux Klan activities. It was a period when the state was far from the liberal political bastion it has become in our time. The idea in both states was to prevent black jurors or their sympathizers from thwarting a conviction by forcing a hung jury.

Given the Louisiana law’s racist pedigree and the consensus that the 1972 court was wrong, we might have expected a unanimous decision in Ramos. The liberal Kagan’s dissent seems particularly out of character – unless we view it through the prism of Roe. In my view, Kagan sought to maintain a high bar toward reversing precedents to protect Roe’s core holding of a constitutional right by women to access abortions in at least some circumstances. This may also explain why Roberts, who is now the court’s closest thing to a swing voter, would have protected the 1972 precedent.

Alito surely approached the issue from a completely different perspective, one that reflects his pre-judicial background as a Justice Department lawyer in the Reagan administration, and later as a prosecutor as U.S. Attorney in New Jersey before joining the 3rd U.S. Circuit Court of Appeals. Alito’s main justification for retaining the Apodaca decision was what he called the “enormous reliance the decision has engendered” among prosecutors and lawmakers in the two affected states.

Two years ago, Alito had no such concern for the enormous reliance that millions of private businesses placed in the court’s 1992 decision in Quill v. North Dakota, which held that states could only impose sales tax collection responsibilities on out-of-state businesses that had a physical presence within their borders. Alito was part of the majority in South Dakota v. Wayfair, which reversed that decision and relieved Congress of the burden of setting a national standard for tax collection.

Kagan joined Alito in that Wayfair majority, in a decision written by former Justice Anthony Kennedy. The rest of the court’s conservatives dissented, along with Ginsburg – in what seemed to be her own marker for a high stare decisis standard in defense of Roe.

This time, in Ramos, the court’s liberals other than Kagan apparently found the rule in question’s racist past (and perhaps today’s disproportionate incarceration rate for racial minorities) compelling enough to abandon stare decisis. It is not particularly surprising that the conservatives who might be inclined to overturn Roe – Justice Clarence Thomas almost certainly, and potentially Gorsuch and Kavanaugh – felt unconstrained by stare decisis to correct Apodaca.

I believe in the general truth of the old adage that where you stand often depends on where you sit. But on the Supreme Court, it may also be driven by where you used to sit. Alito’s resume includes almost no time in his adult life when he worked in the private for-profit sector that the Wayfair decision burdened. But his background made it easy for him to empathize with the prosecutors who played by the then-current rules to win a conviction against Evangelisto Ramos, constitutionally infirm though that conviction might be.

The exchange of liberal dissents by Ginsburg (in Wayfair) and Kagan (in Ramos) may also reflect differences in how the two justices weigh the interests of private enterprise and criminal defendants against their shared commitment to abortion rights.

Do these cases show that individual justices are inconsistent? For sure. Unfair or misguided? Some are bound to think so. Cynical, unethical or intellectually dishonest? These terms are harsh; you can draw your own conclusions about whether they are warranted. But without question, the way justices decide cases reflects the traits all human beings share. Even when acting in good faith, we see and prioritize matters based on our own experiences.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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