Saturday, November 26, 2022 | Back issues
Courthouse News Service Courthouse News Service

Is overturning precedent the new precedent at the high court? 

The Supreme Court’s watershed ruling nixing Roe v. Wade has court watchers and justices alike asking if the centuries-old principle of respecting precedent has fallen to the wayside.

WASHINGTON (CN) — Rulings from the Supreme Court hold enormous weight because unlike bills from Congress or executive orders from the president, their effectiveness is not dependent on the current officeholder. Experts say that might not be the case anymore. 

The court is supposed to abide by the principle of stare decisis — which literally means “to stand by things decided.” As Alexander Hamilton explained, adherence to precedent was necessary “to avoid an arbitrary discretion in the courts.” However, this term court watchers say the conservative majority is creating a new guiding principle. 

“The Supreme Court, in a way, they've set their own precedent and their own precedent is that no matter how settled stare decisis might be, it can be overturned with a blase disregard for the consequence,” Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law and Georgetown Law, said in a phone interview.  “If you get really progressive members of the court, they may take this same exact view and then the Supreme Court becomes nothing more than a third political chamber.” 

Experts have cited many instances where the majority disregards or misinterpreted its prior rulings this term, but the most egregious example they say came with the court’s decision to overrule Roe v. Wade

“It's truly an astounding decision, what I think is one of the most irresponsible decisions in the court's history,” David Cole, the national legal director at the American Civil Liberties Union, said in a phone call.

Roe was decided in 1973 and reaffirmed by Planned Parenthood v. Casey in 1993. However, there are also over 20 cases that reaffirm those holdings or apply the constitutional right to abortion. A slim majority of the court decided that despite all of those precedents, Roe and Casey should be overruled. Their reasoning is that despite having respect for stare decisis, Roe was “egregiously wrong” when decided so it must be overturned. 

“Precedents should be respected, but sometimes the Court errs, and occasionally the Court issues an important decision that is egregiously wrong,” Justice Samuel Alito wrote. “When that happens, stare decisis is not a straitjacket.” 

The Supreme Court has overturned precedents in the past. The most well-known example is the court’s decision in Brown v. Board of Education which overruled Plessy v. Ferguson’s separate but equal holding. Alito cites this example in his reasoning for the court overruling Roe, however, experts note some discrepancies in this comparison. 

Not only was Brown a unanimous decision from the court, but it said Plessy was unconstitutional. That was not the case in Dobbs. As Justice Brett Kavanaugh notes, the court’s ruling does not make abortion unconstitutional, it allows states to make their own laws regarding its legality. 

Experts also note that past rulings overturning precedents have never taken away rights. 

“Never before in the court’s history has it overturned a prior precedent to eliminate a constitutional right central to equality and enjoyed by so many people. … Here it has eliminated a right, and that is truly an anomaly in the court's history to take away rights that have been accepted for generations and central to the equality of half of the nation,” Cole said. 

The three Democrat-appointed justices said the majority’s ruling “abandons” stare decisis and on that basis any precedent five justices disagree with could be in danger. 

“In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey ‘egregiously wrong,’” Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan wrote in a rare joint dissent. “That rule could equally spell the end of any precedent with which a bare majority of the present Court disagrees.” 

They continued, “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.” 

Court watchers say the majority’s disregard for precedent here ignores not only former justices but the majority of the legal community and the public

“They seem to be playing to the 30% of core support for a highly conservative agenda,” Gostin said. “So I think on questions of precedent, institutional authority, incrementalism, moderation. Those are all words that don't seem to be in the vocabulary of the conservative majority.” 

If the current court’s new precedent for ignoring precedent continues, experts say it would ultimately turn around and harm the court itself. 

“It would destroy the legitimacy of the Supreme Court and the public trust in its decision making if you just keep getting seesaw overturning of precedent, but it's very possible,” Gostin said. 

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...