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Why Stop at Roe? How “Settled Law” Can be Overturned

Photo Source Phil Roeder | CC BY 2.0

The Senate hearings on the nomination of Judge Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court was a political charade. Everyone knows that the fix is in. The Republicans control the Senate and, like the earlier appointment of Neil Gorsuch, will push Kavanaugh’s nomination through unless some yet-undisclosed serious scandal is revealed.

The hearings were enacted like the staging of a performance of the theatre of the absurd.  Both Republican and Democratic Senators played their respective parts with Broadway-like perfection, with Senator Cory Booker (D-NJ) likely to win a Tony Award.

One issue at the heart of the political minuet is the doctrine of stare decisis, which means “to stand by things decided.” In short, it is the notion of “settled law,” the legal fiction that a prior Supreme Court decision sets precedent and that it rarely overturns the prior decision and, if so, only for compelling reasons.

One of the most recent and consequential reversals in Court “settled law” doctrine occurred in 2003 when it decided, in Lawrence v. Texas, to reverse Bowers v. Hardwick (1986), thus invalidating state sodomy laws and making same-sex sexual activity legal.

At the Kavanaugh hearings the principle example of “settled law” was the Court’s 1973 decision, Roe v. Wade, that granted a woman the right to personal privacy with regard to her pregnancy.  In all likelihood, Kavanaugh will help push the Court further to the right and, while not formally overturning Roe, will move to further restrict a woman’s legal right to an abortion.

The so-far unasked question is why should the soon-to-be reconstituted Supreme Court stop at only the likely reversal or limiting of Roe?  Supreme Court reversals are not uncommon.  In a 1948 study, Charlotte Bernhardt analyzes 35 reversals during the period of 1844 to 1944. The American Bar Association details 386 cases of Court reversals of federal court decisions between 1991 and 2008.

So, taking a worst-case perspective that assumes that Kavanaughis appointed to the Court and that he will further push it to the right, what “settled” earlier Court decisions could be reversed?  In other words, why stop at only reversing Roe?

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If, as assumed, the reconstituted Supreme Court revises – as distinct from reverses – Roe, why should it not reinterpret Casey v. Planned Parenthood (1992) and expand a state’s right to set limits on an abortion?  Under Casey, the Court ruled that states can regulate abortions so as to protect the health of the mother and the life of the fetus, even outlawing the abortion of a “viable” fetus.

If abortions can be significantly restricted, why not restrict – if not reversal –other principle reproduction-related decisions?  Embolden by strong religious convictions, the five conservative men of the Court could reverse not only Griswold v. Connecticut (1965) that permitted doctors to prescribe contraceptive products to married couples, but also Eisenstadt v. Baird (1972) the extended Griswold to unmarried people seeking contraceptives.  And why, while they are at it, overturn the 1936 ruling, U.S.v One Package of Japanese Pessaries, that struck down the 1873 Comstock laws that granted the federal government the authority to seize imported contraceptive materials or sent through the mail.

In the recent Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) decision, the Court found in favor of a baker who had refused to make a cake for a gay couple’s wedding.  So why not use it to reverse Lawrence v. Texas?  Justice Kennedy, who Kavanaugh is likely to replace, wrote the decision that overrode Bowers v. Hardwickthat made sodomy a criminal offense.  Video producers, graphic artists and florists claim that they should be able to claim the Masterpiece Cakeshop decision to deny services for a same-sex marriage on religious grounds. They could thus challenge the anti-discrimination laws 21 states that protect gay and lesbian.  And if Lawrence is re-reversed, why not reverse Obergefell v. Hodges (2015), that legalizing gay marriage?

In the decades following WW-II, the Court sought a judicious or measured approach by extending free-speech provisions to once considered obscene or pornographic materials.  In Roth v. U.S. (1957), the Court found that “sex and obscenity are not synonymous ….”   In 1962, it ruled, in Manual v. Day,that the Post Office could not refuse mail services for male physique magazines.  In Jacobellis v. Ohio (1964), the Court found Louis Malle’s provocative French film, Les Amants (The Lovers), not obscene.  Justice Potter Stewart, trying to distinguish between “soft” and “hard” core pornography, famously exclaimed, “I know it when I see it.”  And in Miller v. California (1973), the meaning of obscenity was further refined with the traditional criterion — whether a work was “utterly without redeeming social importance” — was revised to three more-contemporary factors: (i) whether the average person, applying contemporary community standards, would find that the work — taken as a whole – appealed to the prurient interest; (ii) whether the work depicts or describes sexual practice in a patently offensive manner; and (iii) whether the work has serious literary, artistic, political or scientific value.

However, the Court has long advanced cautionary restrictions on what’s consider obscene materials.  In 1957, the Court ruled in Adams Theatre v. Keenan that a live public performance permitted a higher obscenity standard than applied to books, magazines, photos and films.  It ruled in the FCC v. Pacifica (1978) case that George Carlin’s seven words – “shit,” “piss,” “fuck,” “cunt,” “cocksucker,” “motherfucker,” and “tits” – were obscene, unsuitable for broadcast on the public radio and television airways.  In 1972, the Court ruled, in Byrne v. Karalexisthat Vilgot Sjöman’s Swedish film, I Am Curious (yellow), distributed by Grove Press, was obscene because it depicted male frontal nudity and could be prohibited from being publicly screened.

In April, President Trump enacted the Senate’s Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) and the House’s Stop Enabling Sex Traffickers Act (SESTA) that will, in time, lead to federal court challenges and, in all likelihood, make their way to the Supreme Court.  In the likely that the same (or worse) Court is still in power when such a challenge is heard, one could well imagine it moving to impose tighter regulations on content distributed via the Internet and any new medium coming into existence.

In the new era of virulent white nationalism and anti-Muslim sentiment, one can only wonder if a far more reactionary Court would rule against “mixed” marriage?  So, would it reverse Loving v. Virginia (1967), a state statute barring interracial marriage as a violation of the 14th Amendment?

Pushing the issue of stare decisis toits bitter absurdity, two Court decisions remain in the need of being reversed.  One is Buck v. Bell; the other is Dred Scott v. Sandford.  In its 1927 Buck decision, the Supreme Court legalized state-sanctioned sterilization. Justice Oliver Wendell Holmes, the legendary voice of moral American, argued: “It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their Imbecility, society can prevent those who are manifestly unfit from continuing their kind… Three generations of imbeciles are enough.” The decision led to the sterilization of some 60,000 citizens throughout the country.  According to a CBS report, “in 2001, the Eighth Circuit Court of Appeals, citing Holmes’ decision, ruled that ‘involuntary sterilization is not always unconstitutional.’”

And then there is infamous Dred Scott case.  In 1858, the Court ruled that descendants of African-American slaves were not U.S. citizens and, therefore, had no rights. The decision was eventually overturned by the Civil War and the adoption of 14th Amendment.  Nevertheless, in 2015, Mike Huckabee, a pillar of Christian virtue, former Arkansas governor and father of Trump’s spokesperson, Sarah Huckabee Sanders, admitted to radio talk-show host Michael Medved, “Michael, the Dred Scott decisionof 1857 still remains to this day the law of the land, which says that black people aren’t fully human.”  And added, “Does anybody still follow the Dred Scott Supreme Court decision?”

***

In the likelihood that Kavanaugh is appointed to the Supreme Court, one can expect that it will slowly adopt ever-more conservative positions on a whole-host of issues.  While much attention has been focused on Roe and a woman’s right to medical privacy, federal deregulation of environmental protections, further tax breaks for the rich and corporations, gun sales/possession and free speech (i.e., obscenity) may be subject to further reversals.

Sadly, the worst is yet to come.

 

 

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David Rosen is the author of Sex, Sin & Subversion:  The Transformation of 1950s New York’s Forbidden into America’s New Normal (Skyhorse, 2015).  He can be reached at drosennyc@verizon.net; check out www.DavidRosenWrites.com.

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