In ditching Roe, Alito cites civil rights, minimum wage cases. Be afraid, says dissent.

6 minute read

Abortion rights demonstrators protests outside the United States Supreme Court as the court rules in the Dobbs v Women's Health Organization abortion case, overturning the landmark Roe v Wade abortion decision in Washington, U.S., June 24, 2022. REUTERS/Evelyn Hockstein

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(Reuters) - Is the U.S. Supreme Court’s momentous ruling on Friday in Dobbs v. Jackson Women’s Health Organization the beginning of the end of deference to established precedent?

Certainly not in the view of the five justices who signed the majority opinion overturning Roe v. Wade, the 49-year-old case that assured a constitutional right to abortion, and Planned Parenthood v. Casey, the 1992 decision that upheld Roe's constitutional conclusion. Justice Samuel Alito, who wrote the court's opinion, cited dozens of examples of cases in which the Supreme Court decided that its previous decisions were so “egregiously wrong” that they had to be undone.

Alito crammed most of the citations into a very long footnote, but he devoted longer discussion to three other instances in which the court has ditched controversial precedent. He seems to have picked his examples with care, since just about no one would argue with the outcome of the featured cases.

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In one of Alito's examples, 1954’s landmark ruling in Brown v. Board of Education, the Supreme Court overturned the “separate but equal” segregation doctrine it had adopted in 1896’s Plessy v. Ferguson. In West Coast Hotel Co. v. Parrish, from 1937, the court did away with a long line of decisions that blocked states from enacting health and welfare protections, like minimum wage laws, for workers. And 1943’s West Virginia State Board of Education v. Barnette restored students’ First Amendment right to eschew saluting the American flag, just three years after the Supreme Court ruled otherwise.

These cases, Alito wrote, demonstrate why the Supreme Court has to be willing to put aside the principle of stare decisis, or deference to precedent, to correct its worst mistakes.

“Some of our most important constitutional decisions have overruled prior precedents,” the majority decision said. “Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”

The Supreme Court has previously overturned cases even when the justices' decisions dramatically upended the expectations of those who relied on established precedent, said Justice Brett Kavanaugh in a concurrence. Looking back to the cases Alito discussed, Kavanaugh said businesses believed before West Coast Hotel that the Supreme Court had insulated them from regulation, and Southern states believed entrenched segregation was constitutional until Brown v. Board of Education. Those examples, Kavanaugh said, undermine arguments that “broad notions of societal reliance” should have precluded the Supreme Court from overturning Roe and Casey.

But if Alito, Kavanaugh and the other three justices who joined the majority opinion thought they’d somehow mollify critics by invoking civil rights and worker protection cases to justify disregarding stare decisis, they were entirely mistaken.

The four justices who did not join the majority opinion all said that Alito and his colleagues had misconstrued the principles underlying the Supreme Court’s rulings in the three precedent-busting cases discussed in the text of the majority opinion. And the consequence of that misreading, according to the justices who did not join the majority opinion, could be disastrous for the Supreme Court.

Chief Justice John Roberts, who concurred in the judgment to uphold Mississippi’s ban on abortions after 15 weeks but specifically repudiated the majority’s rescinding of Roe v. Wade and Planned Parenthood v. Casey, said stare decisis counsels restraint, yet the majority instead opted to deliver “a serious jolt to the legal system.”

None of the three cases Alito cited to defend the majority’s departure from stare decisis actually justifies the majority's determination to overturn Roe and Casey, Roberts wrote. Brown v. Board of Education reflected the Supreme Court’s clear and unanimous view that segregation was unconstitutional. Barnette corrected a short-lived mistake when three justices realized their original decision was wrong. And West Coast Hotel, Roberts said, “was issued against a backdrop of unprecedented economic despair that focused attention on the fundamental flaws of existing precedent.” The new Dobbs decision, Roberts said, fit none of those templates.

In a mournful joint dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor predicted that by tossing aside Roe and Casey, the majority was aiming “a loaded weapon” at the Supreme Court’s institutional legitimacy – trashing the reasoning for the court's previous refusal, in 1993's Casey decision, to overturn Roe.

When the court has taken the grave step of overturning constitutional precedent, as in the cases Alito discussed in the majority opinion, the justices have acted in response “to changed law and to changed facts and attitudes that [have] taken hold throughout society,” the dissent said. By contrast, the dissenting justices wrote, abortion remains as turbulent an issue as ever. That hard fact, wrote Breyer, Kagan and Sotomayor, should have deepened the court’s commitment to defer to precedent instead of prompting the majority to abandon stare decisis in order to strip away a long-held constitutional right.

The majority’s new view of the doctrine, the dissenters said, is a “radical” power play. “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 dissent said. “The majority thereby substitutes a rule by judges for the rule of law.”

Breyer, Kagan and Sotomayor predicted that this decision will pave the way for the revocation of other established constitutional rights, “from contraception to same-sex intimacy and marriage,” at the expense of the court’s authority. (The dissent doesn’t mention Gallup’s latest polling on public confidence in the Supreme Court, but the court’s historically dismal 25% approval rating suggests it doesn’t have a whole lot of legitimacy to spare.)

“Weakening stare decisis threatens to upend bedrock legal doctrines, far beyond any single decision,” the dissenters said. (I raised similar concerns when Alito’s draft opinion leaked last month, but the sentiment is a lot more meaningful when it comes from dissenting justices.) “Weakening stare decisis creates profound legal instability. And as Casey recognized, weakening stare decisis in a hotly contested case like this one calls into question this court’s commitment to legal principle. It makes the court appear not restrained but aggressive, not modest but grasping.”

Those are somber words for a somber day.

Read more:

U.S. Supreme Court overturns Roe v. Wade abortion rights landmark

With Supreme Court poised to ditch Roe, does precedent matter anymore?

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Alison Frankel has covered high-stakes commercial litigation as a columnist for Reuters since 2011. A Dartmouth college graduate, she has worked as a journalist in New York covering the legal industry and the law for more than three decades. Before joining Reuters, she was a writer and editor at The American Lawyer. Frankel is the author of Double Eagle: The Epic Story of the World’s Most Valuable Coin.