Legal abortion wasn't on the Supreme Court docket this week. But justices revealed how they'll end it.

Democrats have always relied on the justices' respect for precedent to keep Roe v. Wade intact. That foundation is now shaking.
Image: Abortion rights and anti-abortion advocates gather in front of the Supreme Court during the March for Life in Washington on Jan. 18, 2019.
Abortion rights and anti-abortion advocates gather in front of the Supreme Court during the March for Life in Washington on Jan. 18, 2019.Mark Wilson / Getty Images file
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By Michael Conway, Former counsel, U.S. House Judiciary Committee

Few lawyers, much less the general public, will plow through 88 pages of legal analysis in a decision upholding current law to discern what lies beneath. But the hints are there, in a decision Monday, that several Supreme Court justices — and maybe a majority — are fully prepared to jettison controlling precedents in cases like Roe v. Wade if they conclude that the prior rulings are "wrong."

On the surface, the ruling in Gamble v. United States on Monday isn't particularly remarkable: The court declined to upset more than 140 years of precedent that allows federal and state governments to prosecute a person for the same charge without running afoul of the constitution's double jeopardy clause, a holding based on the dual sovereignty concept.

The 7-2 ruling, however, took 88 pages to explain, suggesting that there was more to the decision than meets the eye — and not just because speculation existed that a victory for Terance Gamble (on whose behalf then-Sen. Orrin Hatch, R-Utah, filed an amicus brief) would drastically expand President Donald Trump's power to exempt campaign or White House aides, including Paul Manafort, from all potential criminal consequences.

An unlikely alliance of liberal and conservative justices joined the majority opinion of Justice Samuel Alito upholding lower court decisions that Gamble could be prosecuted in federal court for a gun possession crime even though he had been convicted in Alabama state court for the same act. So Gamble lost. But was this a nonevent? Hardly.

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While rejecting a change in constitutional principles, the court hinted that the future application of the legal doctrine of stare decisis, at stake in the Gamble case, may have dire consequences for the continuing viability of Roe v. Wade.

Stare decisis is a legal principle that says that the court should adhere to its prior rulings — and it was at center stage in Gamble's appeal because he had directly asked the court to overrule a series of opinions on dual sovereignty and double jeopardy dating from 1847. The six justices joining the majority opinion first noted that stare decisis "'promotes the evenhanded, predictable and consistent development of legal principles, fosters reliance on judicial decisions and contributes to the actual and perceived integrity of the judicial process,"' quoting a 1991 ruling.

But their ruling then subtly undercuts that proclamation, observing that "of course, it is also important to be right, especially on constitutional matters, where Congress cannot override our errors by ordinary legislation." While reiterating an earlier ruling that a departure from precedent "'demands special justification,'" the court stressed that the legal rule that Gamble attacked had been upheld in numerous court decisions spanning 170 years.

Roe, in contrast, is just 46 years old.

If the oblique references to the various pros and cons of overturning prior law in the majority opinion are ambiguous, Justice Clarence Thomas' concurring opinion is a flashing neon sign that he, at least, is fully prepared to overturn any prior Supreme Court opinion he believes to be "wrong." While agreeing that Gamble should have lost his appeal, Thomas wrote 17 pages to explain his far greater willingness to set aside prior Supreme Court rulings: "We should not invoke stare decisis to uphold precedents which are demonstrably erroneous."

Thomas wrote that all executive, judicial and congressional officers took an oath to support the constitution, but that "the constitution does not mandate that judicial officers swear to uphold judicial precedents." Instead, his premise was blunt and simple: "When faced with a demonstrably erroneous precedent, my rule is simple. We should not follow it."

As an acknowledged critic of the constitutional underpinnings of Roe, Thomas is clearly signaling his readiness to overrule what he regards as an erroneous precedent.

Justice Neil Gorsuch was similarly full throated in his proclamation rejecting blind adherence to precedent: "While stare decisis warrants respect, it has never been 'an inexorable command,' and it is 'at its weakest when we interpret the constitution.'" Gorsuch wrote that the quality of the opinion's reasoning, its consistency with other rulings and legal developments since its issuance were factors as to whether a prior opinion should be followed or rejected.

Each of those factors could be evaluated differently than they were in 1973 if a case challenging Roe reaches the court, especially as several states, including Alabama and Georgia, have recently enacted restrictive anti-abortion laws as vehicles to bring the issue of Roe's continuing viability before the court.

President Donald Trump campaigned on a pledge to nominate Supreme Court justices who would overturn Roe v. Wade. To the extent that the doctrine of stare decisis was seen as a bulwark against that effort — indeed, both Gorsuch and Brett Kavanaugh were extensively questioned about their view of it vis-à-vis Roe during their confirmation hearings — the decision in Gamble suggests that the so-called bulwark is weak and subject to being overpowered if a majority of the justices conclude that Roe is simply "wrong."