The Supreme Court’s abortion jurisprudence can be plotted as three primary points: Roe v. Wade, Planned Parenthood v. Casey, and Dobbs v. Jackson Women’s Health Organization. The line between these precedents was not straight. Indeed, Casey effectively rewrote Roe; Casey abandoned Roe’s trimester framework; Casey found that the state has “legitimate interests” from the outset of pregnancy to protect both the health of the woman and the life of the fetus; Casey abandoned Roe’s application of strict scrutiny to protect the “fundamental” right to abortion. In dissent, Justice Scalia rebuked the majority for preaching fidelity to stare decisis while rewriting precedent. He famously wrote, “I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version.” Justices O’Connor, Kennedy, and Souter tried to “call[] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.” But these judges of wisdom grossly erred in their judgment. Casey did little to settle the contentious debates over abortion. And in Dobbs, the Supreme Court at last extricated the judiciary from this conflict.
There are parallels between the three primary abortion cases and the three primary removal power cases: Humphrey’s Executor, Morrison v. Olson, and now Slaughter. Humphrey’s Executor established a rule with no basis in the Constitution that shifted power from the executive branch to the legislative branch. In much the same way, Roe v. Wade established a rule with no basis in the Constitution that shifted power in a different direction–from the popular branches to the judiciary. As Justice Gorsuch quipped in Slaughter, the Court invented “quasi” things. And just like Casey rewrote Roe, Chief Justice Rehnquist, recognizing how problematic Humphrey’s Executor was, had to rewrite the precedent to save it. Like in Casey, decided several years later, Justice Scalia pointed out the Morrison majority failed to adhere to stare decisis. Scalia quipped, “Humphrey’s Executor is swept into the dustbin of repudiated constitutional principles,” but he would not “grieve for the shoddy treatment given today to Humphrey’s Executor, which, after all, accorded the same indignity (with much less justification)” to Myers v. United States. During oral argument in Slaughter, John Sauer explained that Morrison “gutted and refurbished” Humphrey’s Executor, and “repudiated correctly the idea that there are these quasi-judicial and quasi-legislative powers that are outside the executive power.” For decades, Casey was been under relentless attack. And for much the same time, Morrison has faced similar pressure. Humphrey’s Executor still comes as a wolf, or as John Sauer explained, the Fenris. And since the Morrison compromise cannot hold, Humphrey’s Executor should, and likely will be reversed in Slaughter.
There are some further parallels. Humphrey’s Executor shifted power from the executive branch to the legislative branch. Morrison v. Olson upheld most of that shift, but purported to place some limits. Roe v. Wade shifted power from the popular branches to the judiciary. Casey upheld most of that shift, but purported to place some limits. Both Humphrey’s Executor and Roe v. Wade distorted political accountability, by moving power away from those who are charged with exercising that power: the executive surrendered their executive power to “independent” agencies, and the states surrendered their police power to the courts.
There are also some differences.Ted Olson did not ask the Supreme Court to overrule Humphrey’s Executor in Morrison v. Olson, though the United States asked the Court to overrule Roe in Casey. In both Morrison and Casey, Justice Scalia pointed out that the Court felt compelled to rewrite a decaying precedent as a means of saving it. In Slaughter, the executive branch has squarely asked the Court to overrule Humphrey’s Executor. Solicitor General Sauer accurately described Humphrey’s Executor as a “decaying husk with bold and particularly dangerous pretensions,” that has been “thoroughly” eroded by Morrison, as well as Trump v. United States (more on that case in a future post.).
Morrison v. Olson is not directly at issue in Slaughter, but any decision overruling Humphrey’s Executor will vindicate Justice Scalia, whom Sauer rightly called “one of the greatest jurists in the history of the Court.” And if Humphrey’s Executor is overruled, I do not think the independent counsel statute could ever be resurrected, and the special counsel regulations likely would not stand.
