Justices to Citizens: “We’re the Bosses Baby!”
A particular Supreme Court decision is good to the extent that it is properly and substantively grounded in sound jurisprudence. Sound jurisprudence is recognizable by its reliance on the pertinent legal history and exploration of directly related legal ancestry of the question of law at hand. In addition, good decisions must arise from cases that have arrived at the Court by successfully negotiating the gauntlet of mootness, ripeness, jurisdiction, and standing. Any case that cannot, in good conscience, overcome these obstacles is insufficient for Court consideration. Also, good decisions must be of constitutional substance, which is to say that they must pose a legitimate question of constitutional meaning. Finally, a good decision is one that is restricted, for the most part, to resolving only those issues raised by the parties and the facts of the case. To the extent that a decision lacks these qualities it is no so good.
The Burger Court is responsible for the jurisprudential travesty of Roe and Doe and for constitution-ending modern judicial review. Rather than turning away from the radical jurisprudential innovations of the Warren Court, the Burger Court continued to advance the avant garde methodology of that Court. The Burger Court therefore transforms Warren’s modern judicial review from a controversial innovation into a permanent and conventional practice. Looking back, I think the early Burger Court was a watershed moment in American constitutional law.
Roe v Wade and Doe v Dalton, two companion cases decided by the early Burger Court stand, in my view, as among the worst decisions of the last forty years, perhaps the second worst decision ever with Dred Scott being the worst. It is not only the absence of jurisprudential grounding that make Roe and Doe decisions wrongly decided but also their powerful influence on institutionalizing modern judge-centered review.
Before proceeding to explain why I come to this conclusion, I would like to say that I am neither pro-life nor pro-choice. From a moral standpoint, one can make a claim that the health of a woman justifies removal of a thimble of human tissue or that preventing the derailing of the life of a young woman outweighs at least some of the prohibitions on abortion. On the other hand, one can argue on behalf of the in vitro life however that life is defined. Both moral arguments are compelling, complex, and perhaps unanswerable in the absolute sense.
My criticisms of Roe and Doe fall into two categories: 1) The decisions derive from insufficient legal reasoning and the majorities’ improper reliance on questionable social science and; 2) The cases should not have, under the normal standards of jurisprudence, ever reached the Court. Let me begin with my objections to these cases ever reaching the Court for review.
First, the plaintiff Roe, seeks to a remedy to her dilemma. He dilemma is that she is pregnant and wants to abort but cannot do so because Texas law tightly regulates abortions so much so that it appears that Ms. Roe will not be allowed to abort. Prior to the Court’s granting cert, even before the lower court decided to hear the case, the plaintiff gave birth. This mooted the case and removed the plaintiffs standing for redress. Long established standards of jurisprudence, if followed, would deny standing. The Court simply ignored the standing obstacle and called the case into its jurisdiction. This is one aspect of the decision that, in my view of law, makes it “bad”.
Second, the plaintiff while before the lower court (Fifth Circuit of Texas), argued for but one remedy for her long mooted dilemma of her unwanted pregnancy; a holding that a fundamental constitutional right, heretofore not found, exists for a woman to pursue and receive an abortion. But the plaintiff had no standing and her legal dilemma had been mooted. Under these legal and factual circumstances, one must ask, “under what legal authority does the Fifth Circuit Court convene a tribunal to decide a question of fundamental constitutional rights”. The answer is that traditional fully evolved jurisprudence gave the Court no such authority. And what legal doctrine does the Supreme Court use to grant cert to such a legally unfounded appeal? The Court decided to ignore this long standing jurisprudence and rely on a statute allowing direct appeal to the Supreme Court passed a mere eleven months earlier. In my view, both courts have not only erred but also acted to legislate their own will adding another reason the decision is “bad”.
Third, there is no trial court transcript or evidence to review. There is no transcript or evidence to review because there was never any trial. Clarke Forsyth, an appellate attorney and recognized expert on Roe writes, “Trials and hearings are suppose to thoroughly weigh the evidence and determine the truthfulness and accuracy of claims of the parties. This is all the more important when a case involves constitutional questions and has sweeping implications for the people and the public health in all fifty states. Roe and Doe were conducted without hearing witnesses subject to cross-examination. Both district courts in Texas and Georgia simply decided that facts don’t matter and merely held a two hour-long oral arguments, in which much of the time was taken up with procedural or jurisdictional matters.” Forsythe poses a most troubling question:
There were numerous abortion cases in the courts in 1970 and 1971 and many more in 1972. The Justices could have selected [from among these] cases with a factual record. At the time the Justices chose Roe and Doe, at least seven other abortion cases were pending at the Supreme Court. Remarkably the Justices choose not one but two abortion cases without any factual record. Why?
Thus, Roe and Doe became the case without a record. Forsythe among others, points out that in selecting Roe and Doe the Justice ignored several long-standing principles for good decision-making on constitutional issues:
- Medical and statistical assertions that are not in the trial record but relied on by the judges – what lawyers call “judicial notice” – should be limited to indisputable fact.
- Courts should not decide constitutional questions on an incomplete record.
- Courts should not formulate rules of constitutional law broader than required by the facts.
- Courts should not decide constitutional questions unless the question is presented with the clarity needed for effective adjudication.
- Courts will not anticipate the decision of a constitutional
It was not as if the Justices were not warned that there was no factual record. In the first Doe arguments Georgia’s Attorney General, Dorothy Beasely, made the lack of a factual record point no less than five times.  These problems were compelling and suggest that the Court should have reached no decision, or sent the cases back for trial, or taken other cases with a trial record, or at least reached a narrow decision. Instead, the Justices issued one of the broadest decisions possible. That there was absolutely no record in this transformative case involving complex medical issues, deep rooted cultural norms, and substantive religious beliefs is another reason the decision is “bad”.
Fourth, the case appears to have been granted cert and docketed under confusion of what, if any, constitutional issues were involved. Justice Blackmum told the story that Justice Stewart urged a subcommittee of Justices to hear Roe and Doe under the “misapprehension” that they involved nothing more than an application of Younger and Harris which was to be a matter on procedure not constitutional substance. This apparent confusion among the Justices as to fundamental nature of the review is another reason the decision is “bad”.
Fourth, the Roe and Doe decision rest in part on suspect, and perhaps unethical conduct, on the part of the some of the litigants and at least one Circuit Court Judge. Judge Sara Hughes, the Fifth Circuit Judge heading the panel that first heard Roe, was active in the Dallas feminist community. She was in fact an abortion-rights activist eager to eliminate the abortion laws. She lobbied the Texas legislature to repeal the Texas abortion law. Judge Hughes admitted to the plaintiff’s attorney that she had her mind made up before the Circuit Court hearing.
 Clarke D. Forsythe, Abuse of Discretion: The Inside Story of Roe v Wade, p. 92
 Ibid p. 97
 Ibid p. 90
 Ibid p. 92
 David J. Garrow, Liberty and Sexuality, p. 440