More on Stare Decisis and Cooperation with Evil

On the blog Democracy of the Dead, Justin Dziowgo posts about our discussion whether affirming Roe and Casey as a matter of stare decisis -- say, because the societal reliance on abortion rights has become so great -- would be "culpable cooperation with evil" and thus create a conflict with fundamentals of Catholic faith.

Would such cooperation make him culpable? I would argue that it depends upon the obligations of a judge to the stare decisis principle. If a judge has a moral obligation to that principle due to natural law or civil law, and if it is clear that stare decisis must be applied in this particular case, then it seems that Roberts would not be culpable, for one must still do what they are morally obliged to do even if the consequences may be bad. Any argument that Roberts would still be culpable in these conditions would then seem to rest on a false idea about the power of a Supreme Court justice.

If one argues that he’s morally obligated to follow stare decisis and at the same time is morally bound to overturn Roe even when stare decisis calls for it to be maintained, then they are effectively arguing that he should act beyond his capacity to overturn it. Reductio ad absurdum would suggest that this could cause many problems. Suppose that in addition to stare decisis, there is a legal principle found in the Constitution that upholds the wrongly decided Roe case. Should Roberts override that principle as well? If so, when should he stop? And what if Roberts decides that it is really our form of government that ultimately allows the Roe case? Should he then begin a revolution against the government? In other words, I think the culpability of Roberts has to be measured by the limits of his office.

One could argue that this is false because one is not obligated to follow the evil orders of a superior, and in this case the superior is stare decisis. I think, however, that Roberts would not be following an evil order, for stare decisis is not evil. It is a good principle – presumably – that is allowing an evil to happen, just as doing many other good things allow evils to happen. An example is that my following the good principle of respecting human life keeps me from killing abortionists even though I know that their existence permits other evils.

A few quick responses -- very abbreviated because of the press of other commitments.  First, I think that give more credence than Mr. Dziowgo does to the existence of conflicts between prima facie moral duties.  Second, as I said before, I don't think that a justice who votes to uphold Roe and Casey merely "allow[s abortion] to happen," as when one refrains from interfering with an abortionist (or, to take another example, when a judge refrains from blocking a death sentence, the ground that the death penalty is constitutionally permissible).  The justice actually blocks a legislative effort to stop abortion; the analogy is not to refraining from interfering with an abortionist, but to stepping in to block someone else from doing so.

Mr. Dziowgo also argues that "the Casey decision is slightly different because it makes arguments for why Roe was right and why the right to abortion must be maintained."  This is a distinction that, as I said before, I don't see.  If anything, it seems more justifiable to adhere to a constitutional decision whose result runs against religious faith because the decision is a correct interpretation of the Constitution than because the decision, though an incorrect interpretation, should be followed as stare decisis.

Finally, even if Mr. Dziowgo's arguments show that following stare decisis is ultimately justifiable and therefore creates no conflict with Catholic faith in this case, I don't think that this conclusion is so obvious -- note it takes several paragraphs to reach the conclusion -- that one should simply assume that Roberts would not feel the conflict.  Therefore, it still seems to me too simple to say that in no way would Roberts' religious beliefs ever be likely to have any bearing on the issue. 

Tom B.