Episode 47: About Abortion – A Precedent Primer

November 24, 2021

With SCOTUS oral argument set for December in the Mississippi abortion law case, Akhil preps us for the case; first, with a master class on precedent.

Abortion, and Roe v. Wade, is in the news again as the Supreme Court prepares to review challenges to the Mississippi law which, if upheld, would amount to an overrule of Roe.  Professor Amar tells us that the argument, in addition to discussions of abortion itself, will center on the role of precedent.  To prepare us for an examination of the particulars of this case, he conducts a master class on precedent.  Akhil has written extensively and authoritatively on this over the years; our audience will thus be among the most informed and comprehending spectators when oral argument takes place in December.  We will follow this next week, as we did in the recent gun case, by applying the principles just covered to the actual case.

Erratum: During the discussion of the common law, Professor Amar makes reference to Arson, noting that part of its definition curiously specifies that it take place at night.  In fact, the British Common Law as described in Blackstone’s Commentaries, Book 4, Chapter 16, discusses both Arson and Burglary (both offenses against the “Habitations of Individuals”); it is Burglary, not Arson, which specifies that it must take place at night to meet the definition.  Professor Amar wishes to correct the record; the chapter of Blackstone in question is provided below in the Show Notes.

Show Notes:

British Common Law of Arson and Burglary, from Blackstone

The Common Law of Offenses Against the Habitation of Individuals, specifically Arson and Burglary, from William Blackstone’s classic, Commentaries on the Laws of England, Book 4, Chapter 16.  Note the erratum note above.

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Ledbetter v. Goodyear Tire & Rubber Co

The “Lilly Ledbetter” case, Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2006).  Note especially Justice Ginsberg’s dissent, particularly the final paragraph, which Professor Amar references in his discussion of precedent with respect to judicial glossing of statutes.

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West Virginia State Board Of Education Et Al. V. Barnette Et Al.

The “flag saluting” case, West Virginia State Board Of Education Et Al. V. Barnette Et Al. (1943), 319 U.S. 624, in which the Supreme Court overruled itself – from a case heard only two years prior.

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Minersville District v. Gobitis

Barnette (above), overruled this case, Minersville District v. Gobitis, 310 U.S. 586 (1940).  This demonstrates the Court’s options in the face of an unfortunate precedent in a constitutional case.

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Brown v. Board of Education

The landmark case, Brown v. Board of Education, 347 U.S. 483 (1954), which effectively – if not expressly – overruled Plessy v. Ferguson.  This case is discussed by Professor Amar as another example of the Supreme Court’s options in the face of incorrect precedents.

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