I am a grandfather of two boys and a foster child, a veteran and a lawyer. I am also vice president of an environmental group established to preserve the waterfront in Rhode Island. Since President Trump was elected, with the exception of the Democratic victory in the House of Representatives, I have watched with dismay the destruction of values which I thought were written in stone, especially the bulwark of our country, the rule of law.
The Executive branch of our government refuses to honor subpoenas issued by committees of the House of Representatives. The United States Attorney General is investigating the investigators. The State of Alabama passed a law to outlaw abortions except in a very limited circumstance to create a court case to challenge Roe v. Wade. The law was enacted in part by 57 men, all Republican.
Watch what the Supreme Court can do. In a 5-4 decision authored by Justice Thomas, Franchise Tax Bd. Of Cal. v. Hyatt, reversed 40 years of precedent by ruling in favor of The California Franchise Tax Board. The question before the court was if a citizen, in this case Hyatt, a resident of Nevada could sue the Franchise Tax Board of California in Nevada where he lived rather than be forced to go to California to bring suit. Justice Thomas said “no.” In reaching his decision, he stated that the precedent which would allow Hyatt to bring such a suit in Nevada, “Nevada v. Hall is irreconcilable with our constitutional structure and with … historical evidence.”
Let me rephrase this case as if it were referring to Roe v. Wade. The Court might say: “the precedent which would allow abortions “Roe v, Wade is irreconcilable with our constitutional structure and with … historical evidence.”
The NY Law Journal today published an article about “Stare Decisis” by Tony Mauro. He reported that “the [United States Supreme Court] has explicitly overruled past opinions 141 times since 1851 – slightly less than once per year. During his confirmation hearing in 2005, Chief Justice John Roberts Jr. said overturning precedents is “a jolt to the legal system.” He added that sometimes, “there are situations when that’s a price that has to be paid.”
Justice Roberts is the guy who is supposed to like precedent. However, he was the swing vote overturning a precedent that allowed Justice Thomas’ decision to become law. Will something like that happen with Roe v. Wade?