chevron-down Created with Sketch Beta.
    July 26, 2023 HUMAN RIGHTS

    Human Rights Heroes: Supreme Court Justices Who Upheld Precedent

    by Stephen J. Wermiel

    Sometimes the rule of law requires courage. Human rights advocates around the world often go out on a limb. Criminal defense lawyers may represent unpopular clients. Civil rights lawyers may buck societal values. 

    Judges, too, may summon courage to uphold the rule of law. That was the case in 1992 in the major abortion decision of Planned Parenthood v. Casey. The lead opinion for the U.S. Supreme Court was a highly unusual jointly written opinion for Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter. The three were part of a narrow majority to reaffirm the right of a woman to choose to have an abortion.

    Judges, too, may summon courage to uphold the rule of law. That was the case in 1992 in the major abortion decision of Planned Parenthood v. Casey.

    Judges, too, may summon courage to uphold the rule of law. That was the case in 1992 in the major abortion decision of Planned Parenthood v. Casey.

    COLLECTION OF THE SUPREME COURT OF THE UNITED STATES, PUBLIC DOMAIN VIA WIKIMEDIA COMMONS

    Why courage? All three were appointed by republican presidents with the goal of eliminating the right to abortion—O’Connor in 1981 and Kennedy in 1988 by Ronald Reagan; Souter in 1990 by George H.W. Bush. Of even greater significance, all three intimated that they likely would not have supported a right to abortion as a matter of first impression in 1973 when Roe v. Wade was decided.

    Instead, together, the three justices wrote, “Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”

    They went on to discuss the importance of precedent and the need for stability in the law. “Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable,” they wrote.

    In other words, although they might not personally favor a right to abortion, they were placing a high value on the institutional credibility of the Court. “A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law,” the three justices wrote.

    To be sure, there is no universally accepted Supreme Court definition of when to honor precedent and when to overrule. And the Court’s conservative majority took a dramatically different tack in June 2022 in Dobbs v. Jackson Women’s Health Organization, finding no reason to honor precedent and eliminating the right to abortion.

    There are obviously many differences between the Court’s action in Dobbs and the decision 30 years earlier in Casey. One that merits the mantle of Human Rights Hero is the willingness of Justices O’Connor, Kennedy, and Souter to put aside their own views to vote for stability and precedent as essential elements of the rule of law.

    Considering all factors related to precedent, the three justices declared, “the stronger argument is for affirming Roe’s central holding, with whatever degree of personal reluctance any of us may have, not for overruling it.”

    Entity:
    Topic:
    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

    Stephen J. Wermiel

    Professor at American University Washington College of Law

    Stephen J. Wermiel is a law professor at American University Washington College of Law and past chair of the Section of Civil Rights and Social Justice.