While the justices of the Supreme Court did not hand down decisions yesterday in any of the still-pending big cases (affirmative action, voting rights, marriage equality), they did tip their hand a bit — showing, as Andrew Cohen says in this Atlantic piece, just how sharply divided they are ideologically.
And what they revealed does not bode well for those decisions yet to come in the next ten days, as well as some coming in later terms.
Discussing the court’s decision in Alleyene v. U.S., Cohen said:
Long after folks forget about this case and this ruling and the role of juries in criminal sentencing procedure they may remember the extraordinary exchange between Justice Alito and Justice Sonia Sotomayor over a case (Roe v. Wade) and a topic (abortion rights) that have nothing to do with the Sixth Amendment.
The two justices scrapped over the concept of stare decisis — the doctrine which posits that the Court should overturn its own precedent only in exceptional circumstances.
In a snarky dissent, Justice Alito issued a warning to the Court about creating a “precedent about precedent that may have greater precedential effect than the dubious decision on which it relies.” “The Court ought to be consistent in its willingness to reconsider precedent,” Justice Alito wrote. “If [Harris] can be cast aside simply because a majority of this Court now disagrees with them, that same approach may properly be followed in future cases.” He might as well have written Roe v. Wade in the margins of his text.
This in turn was too much for Justice Sotomayor. In a concurrence, she forcefully made the case for respecting Roe v. Wade precedent even as she was voting to overturn it.