Sunday, October 10, 2021

#283 / Politics And Precedent


Former Supreme Court Justice Antonin Scalia is quoted above, with the quotation taken from a blog posting about the case of South Dakota v. Wayfair, Inc.  In Wayfair, the Court overturned a longstanding Supreme Court precedent that held that states could not require a business that had no physical presence in the state to collect the state's sales tax. 
If you want to understand the implications of the Wayfair precedent, you might think about Amazon. Particularly in its early days, Amazon sold hundreds of millions of dollars worth of goods in states where it had no physical presence (in California, for instance). Based on the Supreme Court's pre-Wayfair precedents, Amazon took the position that it should not be forced to collect and remit state sales taxes. Naturally, this gave Amazon a huge advantage over in-state businesses that did have to collect and remit the state sales tax. The pre-Wayfair precedent helped Amazon establish its retail dominance. 
Scalia was no longer on the Court when Wayfair was decided in 2018 (Scalia died in 2016). However, Scalia was in the majority in the case of Quill Corp. v. North Dakota, a 1992 case that furnished the pre-Wayfair precedent upon which Amazon (and other businesses) relied. In Quill, the Supreme Court refused to make a corporation without a significant physical presence in the state collect and remit the state's sale tax for goods sold to customers in the state. In backing corporations like Amazon against the claims of state governments, Scalia said that maintaining "stability in the law" was a main reason to demand that courts follow earlier decisions. Citizens have a "reliance interest" that demands that courts follow their own precedents.

Surely, there is a reason to acknowledge the importance of maintaining precedent as people bring their disputes to the courts. Following precedent not only provides "stability in the law," and supports the "reliance interest" that people have in earlier decisions, it also provides some guarantee to citizens that the Supreme Court - and the courts in general - are not just another "political" branch of government, and an "unelected" branch, at that, not accountable to the people. 

Given his support of precedent, how was Justice Scalia on Roe v. Wade, the famous Supreme Court decision that give women the right to choose whether or not to have an abortion? Where business privilege was involved, Scalia was in favor of precedent. Not so much in the case of a woman's right to choose. Here's a quote from a law review article on "judicial activism." 

While Scalia did not join the Court until 13 years after Roe v. Wade was decided, it was the focal target for his attacks on the judicial activism which created a constitutionally protected right to abortion.
I was thinking about the Supreme Court's devotion to precedent (or not) when I read an exceptionally thoughtful commentary in the September 27, 2021, edition of The New Yorker. Writing in "The Talk Of The Town," Margaret Talbot made the following observation about a case from Mississippi, now pending before the Court. Dobbs v. Jackson Women’s Health Organization, she notes, is "widely viewed as an opportunity for the Justices, if they so choose, to overturn the nearly fifty-year-old precedent set by Roe v. Wade."
Mississippi claims that no “legitimate reliance interests call for retaining Roe and Casey,” the 1992 Supreme Court ruling that upheld a constitutional right to abortion while allowing states to impose limits before the stage of fetal viability. The state also says that Justices needn’t worry about stare decisis—the principle that would encourage them to respect legal precedent—or about the impact on people’s lives if Roe is tossed out. Abortion-law jurisprudence, the petitioners write, has always been “fractured and unsettled,” and the “Court is not in a position to gauge” how reliant society is on abortion. But, as the lawyers representing the lead respondent—the only remaining abortion clinic in Mississippi—point out, the Court has heard multiple abortion cases since Roe and, while it has allowed states to chip away at the constitutional right to abortion, it has also clearly upheld the core finding.
I would like to think that when the Court files its decision in Dobbs v. Jackson Women’s Health Organization the Court will, in fact, follow the precedent established in Roe v. Wade. How the Court will actually come down remains to be seen. 

Thinking about the subject of "precedent" more generally, though, it seems clear to me that "precedent" can never completely preempt the need for courts to examine each case individually, and to consider what a decision that follows "precedent" would mean in real life. In the case of Roe v. Wade, Talbot's article makes a strong argument that the "stability of the law," and our "reliance interest" on precedent should count towards upholding the essential holding of Roe v. Wade. As I say, I agree, and am hoping that the Supreme Court will not upset the precedent set by that historic case, giving women the right to make their own choices about abortion during the first trimester of a pregnancy.

But consider the Wayfair case. I also believe that the Court was right, in Wayfair, to demand that corporations like Amazon collect and remit sales taxes with respect to online sales made to customers in any state that levies a sales tax. "Precedent," in other words, is important - very important, actually - but it is not the only thing that is!

That conclusion suggests that in the realm of human affairs there is no escaping "politics." We do "live in a political world," and what I sometimes call an "equation" states how that world works: 

Politics > Law > Government
We govern ourselves through the laws we enact and enforce, but our political decisions will, and should, be understood to shape the law. In other words, if we want self-government (if we want good government), we are going to have to get involved in "politics" ourselves.

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