New York Times’ SCOTUS Reporter Laments ‘Rough Two Weeks’ For Roe v. Wade

New York Times Supreme Court reporter Adam Liptak is once again suggesting that the court must uphold the (constitutionally non-existent) right to abortion if it wishes to maintain credibility with the public (although abortion isn’t actually popular with the public) in Tuesday’s “With Roe at Risk, Justices Explore a New Way to Question Precedents.”  

Liptak was alarmed by what the subhead refers to as “looking at what lawyers had argued when assessing whether to continue a precedent,” rather than just the reasoning of justices. His sympathy for the bad ruling (the late, liberal Justice Ruth Bader Ginsburg also criticized it) was evident in his consolatory opening.

Roe v. Wade has had a rough two weeks at the Supreme Court.

On Dec. 1, at arguments over its fate in a case from Mississippi, the five most conservative justices showed no interest in doing anything short of overruling it.

….

The Mississippi case decision is unlikely to be announced until June. This is a possibility that the court will overrule Roe. it will have to explain why it is departing from the principle of stare decisis, which is legal Latin for “to stand by things decided.”

At his 2005 confirmation hearings, Chief Justice John G. Roberts Jr. said the Supreme Court should be wary of overturning precedents, in part because doing so threatens the court’s legitimacy.

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[Roberts] suggested that the fetal-viability line established in Roe was not a crucial part of the decision’s reasoning. “Was viability an issue in the case?” he asked. “I know it wasn’t briefed or argued.”

Liptak acted alarmed at Robert’s fresh angle.

The chief justice tried to shift the emphasis from the court’s actions to the requests of the parties to the case. He was trying to justify a 15-week rule, but not overrule Roe completely, which would have allowed states to make abortion illegal.

Whatever his goals, however, shifting the analysis of an opinion from its advocacy to its words is a new development. This will also help to weaken precedents.

A journal article was found to support the concerns of the reporter.

Richard J. Lazarus, a law professor at Harvard, explored this mode of argument in a recent article in The Supreme Court Review called “Advocacy History in the Supreme Court.”

Chief Justice Roberts’s question seemed to go further, suggesting that the meaning and weight of a decision may turn on the arguments that had been presented to the court.

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Professor Lazarus explained that it was possible to analyze the Supreme Court case history in order to gain a better understanding of it, and yet another thing to place more weight on it based on the arguments made by the lawyers.

Chief Justice Roberts’s question about Roe was in a sense irrelevant, as the significance of fetal viability had been thoroughly argued in Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe’s core holding.

Liptak didn’t comment on the late Sen. Arlen Specter (a fierce proponent of abortion rights) ridiculously declaring Roe v. Wade “a super-duper precedent” during Roberts’ 2005 confirmation hearings — a phrase that would have surely puzzled John Jay.

That made Roe a “super-duper precedent,” Senator Arlen Specter of Pennsylvania said at Chief Justice Roberts’s confirmation hearings. The chief justice did not adopt Mr. Specter’s terminology, but he did not quarrel with the senator’s larger point.

Liptak’s recent “news analysis,” “As Roe Teeters, Belief in Court Could Tilt, Too,” also suggested the Court’s credibility was (conveniently) at stake. In October, Liptak warned about a credibility crisis in a lead story, “Abortion Leads Charged Docket in Court Return – Challenge For Roberts – Justices Defend Record as Polls Show Decline in Public Support.”