In a biting dissent two years ago, when the Supreme Court overturned a ruling from 1979, Justice Stephen Breyer wrote that the decision “can only cause one to wonder which cases the court will overrule next.”
Breyer is about to find out.
The justices are gathering Wednesday to consider a momentous question that has roiled the political sphere for decades and become a major feature of every modern-day judicial confirmation hearing: should Roe v. Wade be overturned?
Front and center at oral arguments will be a Mississippi law that bars abortion after 15 weeks of pregnancy, that has the court considering whether a woman has a constitutional right to end a pregnancy.
But lurking behind the law is another question that goes to the stability of the court as an institution. The justices will also weigh in on how seriously they should consider the very fact that Roe has been on the books for nearly a half-century.
Put another way: if the court uses cases as building blocks to construct the rule of law, what happens when one block — put in place in 1973 — is yanked out?
As much as some of the justices might wish they were writing on a blank slate, they cannot pretend they haven’t dealt with Roe in numerous cases over the years. Equally important, several of the justices have at various times laid out the factors they weigh when voting to overturn precedent.
How the court grapples with that question could illuminate the way forward for the court and its aggressive right flank as it grapples with other divisive topics in the future.
In legalese, the doctrine the justices will consider on Wednesday is called stare decisis. It derives from the Latin “stare decisis et non quieta movere” meaning, roughly, to stand by things decided and not disturb the calm.
For some, stare decisis is critical because it represents the accumulated wisdom of judges, preserves stability in the law and promotes an evenhanded and consistent development of legal principles. For others, like Justice Clarence Thomas, it is overrated at times, especially as he wrote in 2019, if it gives the “veneer of respectability” to what he called “demonstrably incorrect precedents.”
Wednesday’s case will bring the debate to a head as the court considers a federal appeals court decision that struck down the Mississippi law. The 5th US Court of Appeals — one of the most conservative courts in the country — invalidated the Mississippi law, holding it was in in direct contravention of Roe.
“In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed and re-affirmed) a woman’s right to choose an abortion before viability,” the court held.
Mississippi appealed the decision to the Supreme Court. After the justices agreed to take up the dispute, the state attorney general made the big ask: “This Court should overrule Roe,” because the decision has proven “hopelessly unworkable.” Roe, and another case called Planned Parenthood v. Casey decided in 1992 have “inflicted profound damage,” the state said.
“Reliance interests do not support retaining them,” the state argued. “And nothing but a full break from those cases can stem the harms they have caused.”
Supporters of abortion rights, were quick to respond, emphasizing from the start how the country has come to rely on Roe.
“Two generations — spanning almost five decades — have come to depend on the availability of legal abortion and the right to make this decision has been further cemented as critical to gender equality,” Julie Rikelman, a lawyer for Jackson Women’s Health Organization, said in briefs.
And she took aim at the new conservative majority. She said that if the court were to suddenly overrule Roe, after some 50 years, the new court would be turning its back on its institutional legitimacy.
“Unless the Court is to be perceived as representing nothing more than the preferences of its current membership, it is critical that judicial protection hold firm absent the most dramatic and unexpected changes in law or fact,” Rikelman wrote.
But O. Carter Snead, a Notre Dame Law School professor, believes the court would be repairing its institutional legitimacy by overruling Roe. “The Court’s abortion jurisprudence is completely untethered from the Constitution’s text, history and tradition,” he said in an amicus brief supporting Mississippi. “It has imposed an extreme, incoherent, unworkable, and antidemocratic legal regime for abortion on the nation for several decades.”
What liberals and conservatives say
The justices have not always been consistent when it comes to stare decisis.
Breyer made the case for the legal doctrine in the 2019 dissent when the court held that a state could not be sued by a private party in the courts of a different state.
He said that stare decisis required the court to follow precedent in the case, not overrule it. In making the point he cited the abortion precedent in Casey — the 1992 case where the court reaffirmed the core holding of Roe. “Overruling a case always requires special justification,” Breyer wrote.
“The people of this Nation rely upon stability in the law,” Breyer added. “Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives,” he said. “Each time the Court overrules a case, the Court produces increased uncertainty.”
The previous year, the court dealt a major blow to public sector unions striking down an Illinois law that required non-union workers to pay fees that go to collective bargaining. In doing so it overturned a 1977 case.
Justice Samuel Alito wrote for a 5-4 court. “We will not overturn a past decision unless there are strong grounds for doing so,” he said. “But as we have often recognized,” stare decisis is not an “inexorable command.”
Alito laid out factors that he believed should be taken under consideration in deciding whether to overrule a past decision.
They include the “quality” of the decision’s reasoning, the workability of the rule established by the case, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision.
Justice Elena Kagan dissented in that case, joined by liberal Justices Ruth Bader Ginsburg, Breyer and Sonia Sotomayor. Kagan castigated the majority, writing that there were no special justifications for overruling the case and that the decision had “proved workable.”
She called 1977 decision “deeply entrenched, in both the law and the real world.”
The precedent at issue wasn’t wrong, Kagan wrote, “but even if that were true, it is not enough.”
In a 2020 case dealing with non-unanimous jury verdicts for serious offenses, Kavanaugh said that the doctrine does “not mean the court should never overrule erroneous precedents,” and he listed landmark cases that overruled precedent including Brown v. Board of Education — the landmark opinion from 1954 that struck down school segregation and the “separate but equal” doctrine.
Kavanaugh said one factor the court should consider is whether a prior decision was “not just wrong, but grievously or egregiously wrong.”
Roberts said the doctrine should not be a “mechanical formula of adherence to the latest decision.”
“When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right,” he said.
“Its greatest purpose is to serve a constitutional ideal — the rule of law,” he wrote. “It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.”
In 2013, Thomas was asked about the doctrine during an interview sponsored by the Federalist Society with Judge Diane Sykes, who sits on the 2nd US Circuit Court of Appeals.
“Stare decisis doesn’t hold much force for you,” Sykes said.
“Not enough to keep me from going to the Constitution,” he responded.
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