Freakonomics Claimed in an Interview

¶ … Freakonomics claimed in an interview on the Today Show that the Roe v. Wade Supreme Court decision, which paved to the way for legal abortions, also helped the crime rate to drop. That was not the first time that point had been made. That author, Steven Levitt, had been quoted in an article in the American Prospect in 2001, when he released his contention that there was a stronger link than that between tougher policing and reduced crime rates. That more direct link was between abortion and crime. As the article said, "Or to be more precise, between the 1973 Roe v. Wade decision legalizing abortion and the much heralded fall in crime rates starting about 18 years later, in the early 1990s" (Abramsky, 2001, p. 25). Clearly, if that is true, Roe v. Wade had a major effect on changing social policy; indeed, it was also likely a reaction to changing social policy.

All four of the cases considered here contributed to and were at least partially representative of changing social policy. They also shed some light on the principle of stare decisis, and the implied, as well as actual, powers of the judiciary.

An interesting pair of cases in particular helps trace both social attitudes, in this case toward slavery and discrimination, and the use of the stare decisis principle. Those two cases are Plessy v. Ferguson and Brown v. Board of Education (Topeka, KS), although all the cases have some issues concerning precedent and why it was, or was not, the deciding factor for the members of the Supreme Court.

One observer, Paulsen, believes that the Supreme Court often uses "changes in factual circumstances or assumptions that could justify departure from precedent" (2000, p. 1529), a viewpoint also articulated in a National Review article (1986, p. 17+). Paulsen notes that it was very likely changes circumstances in the Brown v. Board of Education decision that justified its de facto overruling of Plessy v. Ferguson (Paulsen, 2000).

Plessy v. Ferguson, while not based on school issues, but rather commercial interests and individual minority rights, nevertheless would have been sufficient to continue in force the practice of 'separate but equal' schools for minority student. In addition to the precedent in Plessy v. Ferguson, in which discrimination was basically upheld, there was a widely held belief at the time that blacks were mentally inferior, despite the "clear evidence that many blacks -- for example, Frederick Douglass, a self-educated former slave who became a U.S. ambassador, and George Washington Carver, a former slave who became a great agricultural innovator -- were far more intelligent than most whites. There was no rational educational ground to support tracking by race and no defensible state interest" (Kapla, 1999, p. 310).

On the basis of social concepts at the time, the Supreme Court could easily have acted on the basis of stare decisis. However, it is tempting to think that they, if not the society as a whole, were well aware how ludicrous the belief in black inferiority was, and therefore took the (needed) changes in society as their starting point for dismissing precedent in Brown v. Board of Education, and finding in such a way that society was, in fact, changed by the decision. It is also tempting to think that the Brown v. Board of Education decision opened the way for President Lyndon Johnson's Great Society a decade later. The legislation engendered by that social concept included the civil rights legislation that today prohibits job and housing discrimination and many more advances that were not even under discussion generally when Brown v. Board of Education was decided.

There is something of a common thread regarding social causes and impacts in the Plessy v. Ferguson, Brown v. Board of Education and Roe v. Wade cases. Each of those concerned the civil rights of individuals; the decisions dealt with those issues in such a way that a path for society to change its attitudes was created.

But what about Bush v. Gore? Can this case be considered as anything more than a national embarrassment and one that, on its own, created a precedent for the alleged electioneering abused four years later?

Bartley contends that Bush v. Gore was a hard case and that respectable constitutional arguments can be found on both sides. If one is thinking about the case strictly in terms of 'hanging chads' and those other esoteric problems with the paper ballots, then the case would easily be seen as a matter of observable fact running into state election laws and might never have gotten to the Supreme Court. Obviously, then, there was more to it than that. Bartley notes that once the issues were taken to the Supreme Court, then additional factors were brought to light, including "gaps, and ambiguities in Florida law, federal law, and the Constitution" (Commentary 2005, p. 25+).

There was more to this case than that, although the extra facets were not adjudicated; instead, they form the societal context of the case. Commentary notes that they arose "out of controversies concerning core constitutional issues -- the boundaries of personal freedom and the contours of equality under the law" (Commentary, 2005, p. 25+). Commentary was doubtless thinking of the disenfranchisement of those who were personally incapable of properly punching or marking a ballot, people of any race who were careless or confused. However, at the time, there was also a great deal of information reported by the media contending that civil rights of protected groups, in this case, African-Americans, had been violated by various illegal polling place and/or police activities. Indeed, the common wisdom of those who supported Gore considered the race to have been lost due to illegal racial harassment of African-Americans on their way to the polls; whether this media and societal concept was considered by the Supreme Court judges cannot be entirely known. However, their action was, as in Brown v. Board of Education and Roe v. Wade, arguably both a symptom of and contributor to the national social mood of the times. The minority the court was considering -- the imperfect ballot markers -- lost the decision.