Precedent Schmecedent

AP Photo/Mariam Zuhaib

On Monday night, word got out that according to a draft opinion of Dobbs vs. Jackson Women’s Health Organization, the United States Supreme Court appears to be on the verge of striking down Roe v. Wade, the court case that established the non-existent constitutional right to obtain an abortion.

The leak of the draft opinion sent shockwaves nationwide, not only because of the implications of this potential ruling (it could still change) but also because of the breach of confidentiality of the court.

But what I want to discuss is something different. In the few short hours since the leak, the reaction from the left has been … well … pretty much what you would expect: Anger. Panic. Venom.

While it is amusing to see left-wing feminism suddenly being able to define what a “woman” is again, one tired argument that keeps creeping up is how the Supreme Court didn’t respect established precedent.

For example, CNN’s S.E. Cupp, who still professes to be a conservative, asked Monday night, “Wherever you come down on abortion, what’s the point of ‘settled law’ if it can be overturned?”

I guess this is par for the course for CNN personalities. Can someone let S.E. Cupp know that Roe v. Wade isn’t a law? It was never passed by Congress or signed by a president. It is a legal precedent established by the 1973 Supreme Court case. But let’s just pretend Cupp’s use of the phrase “settled law” was an error of semantics and what she was really attempting to argue was “what’s the point of ‘legal precedents’ if they can be overturned?”

And boy, what a stupid argument that is.

I’m always amazed how often this argument is made—especially by Democrats when a Republican has nominated someone to the Supreme Court. There are always questions about whether the nominee will “uphold established precedent,” because, in their view, precedents are not to be messed with. You can’t change so many decades of precedent! It’s precedent! It’s untouchable!

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Legal precedent is not set in stone. There’s nothing “settled” by legal precedent any more than there’s anything “settled” by an actual law being passed. Laws and legal precedents change all the time. And everyone, even the Democrats who insist legal precedents are untouchable sacred cows, knows this. If they didn’t, they wouldn’t try to get conservative judges to go on the record saying they’ll “respect” legal precedents.

If Democrats were right, then the Supreme Court should have respected Baker v. Nelson (1972) in 2015 when it ruled in Obergefell v. Hodges and not legalized same-sex marriage.

Or does that not count?

If Democrats were right, then the Supreme Court should have respected Pace v. Alabama (1883) in 1967 when it ruled in Loving v. Virginia and not legalized interracial marriage.

Or does that not count either?

If Democrats were right, then the Supreme Court should have respected Plessy v. Ferguson (1896) in 1954 when it ruled in Brown v. Board of Education and kept racial segregation legal.

What about that one?

For years, we’ve heard Democrats bellyache about the sanctity of legal precedents—but only for the ones they like. In reality, there is no such thing as “settled” anything—be it a codified law, a legal precedent, or the flavor of Coke. Laws change and replace older ones. Legal precedents are overturned constantly. Even Coke changed its formula once or twice.

The Supreme Court, at any given point in history, makes judgments that reflect the legal interpretations of members of the court at that time. These justices are human beings, and we all acknowledge that throughout history they’ve gotten some decisions wrong and some decisions right.

Should the apparent decision in Dobbs vs. Jackson Women’s Health Organization indeed pan out, you won’t hear Democrats insist on the infallibility of legal precedents. That’s because no legal precedent was ever permanent. Legal precedents have been wrong many times in the past, and some have been corrected years later.

And one appears to be on the verge of being corrected now.


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