Confessions, abortions, and the startling case of the Erie Railroad Company

Would Supreme Court nominee Samuel Alito vote to overturn Roe v. Wade?

It's the question that cannot be answered.

In confirmation hearings set for January, we can expect to hear Judge Alito promise to follow the Constitution and show a deep respect for precedent.

A lot of good that does us.

The problem is, there is no right to privacy in the Constitution. You can tell this is true because if there were a right to privacy in the Constitution, senators wouldn't ask Supreme Court nominees if they believe there is a right to privacy in the Constitution. Nobody asks them if they believe slavery is unconstitutional or if they believe women have the right to vote.

So the question is whether the nominee, once confirmed, would follow the Constitution as written or accept Roe v. Wade as a binding precedent that cannot be overturned.

We will be hearing much about stare decisis, Latin for "let the decision stand," the doctrine that judges are bound by precedent and not free to roam, as someone once said, "in the trackless fields of their own imaginations."

Five years ago the U.S. Supreme Court reconsidered its 1966 landmark Miranda v. Arizona decision, in which the Court had ruled that police officers were required to inform suspects of their rights before questioning them. Writing for the majority in the 2000 Dickerson v. United States case, Chief Justice William Rehnquist said this:

While "'stare decisis is not an inexorable command'", particularly when we are interpreting the Constitution, "even in constitutional cases the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some 'special justification.'"

We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.

Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented from this decision. Justice Scalia wrote:

Far from believing that stare decisis compels this result, I believe we cannot allow to remain on the books even a celebrated decision--especially a celebrated decision--that has come to stand for the proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States. This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people.

You see the problem.

Even longstanding precedents can be overturned if the justices believe they were decided incorrectly.

"I see little harm in admitting that we made a mistake," Justice Scalia wrote in his Dickerson dissent.

He's not the first Supreme Court justice to take that view. In the 1938 case of Erie Railroad Company v. Tompkins, the Court overturned the 1842 case of Swift v. Tyson, even though the courts had been applying its legal doctrine for nearly a hundred years. Justice Louis Brandeis wrote for the Court,

[T]he doctrine of Swift v. Tyson is, as Mr. Justice Holmes said, 'an unconstitutional assumption of powers by the Courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.'

Privacy rights in the United States may be hanging by a thread, but stringing up the president's Supreme Court nominees will not solve the problem.

We're in this situation because for decades we have allowed Supreme Court decisions to substitute for constitutional amendments.

When the right to privacy is secured by a constitutional amendment, it will really exist. Only then can we can stop asking Supreme Court nominees if they believe in it.

Read more about it in "Why There is No Constitutional Right to Privacy, and How to Get One" at www.SusanShelley.com.


Copyright 2005

Source notes:

The "trackless fields" quotation is from James Kent (1763-1847), who was, among other things, the first professor of law at Columbia University.

Dickerson v. United States, 000 U.S. 99-5525 (2000). In the first paragraph of the Rehnquist quotation, the Chief Justice cited State Oil Co. v. Khan, 522 U. S. 3, 20 (1997) [quoting Payne v. Tennessee, 501 U. S. 808, 828 (1991)], Agostini v. Felton, 521 U. S. 203, 235 (1997), United States v. International Business Machines Corp., 517 U. S. 843, 856 (1996) [quoting Payne, supra, at 842 (Souter, J., concurring) (in turn quoting Arizona v. Rumsey, 467 U. S. 203, 212 (1984))].

Erie Railroad Company v. Tompkins, 304 U.S. 64 (1938). The "respectable array of opinion" quotation can be found at page 79.

Swift v. Tyson, 40 U.S. (16 Pet.) 1 (1842). In his 1950 book American Constitutional Decisions, law professor Charles Fairman, who taught Wiliam Rehnquist at Stanford, wrote of the Swift v. Tyson era, "Throughout that long period the federal judiciary, as we now see it, encroached upon the authority of the several states, producing a considerable dislocation in our federal system." (Revised Edition, p. 170)