Yesterday, all eyes – or at least all ears – were on the Supreme Court’s oral argument in Dobbs v. Jackson Women’s Health, the case involving a Mississippi statute that would ban abortion after 15 weeks, in direct contravention of Roe v. Wade. As predicted, though, the heart of the argument was more about precedent and stare decisis than about abortion itself.
Why is that? It’s because the Court is not a congress. What do I mean by that? Well, a congress (or any legislature for that matter) is made up of voting representatives who, while they may follow individual ideologies and philosophies of legislating, act collectively by voting for or against statutes. They can vote a law into being one year, amend it the next, and repeal it altogether any time after that. Certain laws that are controversial and narrowly passed are in constant jeopardy of alteration and appeal because it is a purely political body that passes such laws. See, for example, the Affordable Care Act. When a legislature does away with a law, it does so without apology, handwringing, or special justification. It’s all about the new policy preference, and it’s all about the votes.
These undoing principles apply, by the way, not just to ordinary statutes but also to our nation’s charter, the Constitution. For example, in 1919, the Eighteenth Amendment prohibited the manufacture, sale, and transportation of alcohol. Boy, did that turn out to be a mess. And so, fourteen years later, in 1933, the Twenty-first Amendment undid the Eighteenth. And that was that. There was a new policy preference, and the liquor lobby had the votes. And whoever has the votes wins. Cheers.