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

6 minute read

A demonstrator holds a sign during a protest outside the U.S. Supreme Court, after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year, in Washington, U.S., May 3, 2022. REUTERS/Evelyn Hockstein

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  • Roe v. Wade
  • Planned Parenthood v. Casey
  • Ramos v. Louisiana

(Reuters) - It is no small thing for the U.S. Supreme Court to abandon its own precedent.

Even Justice Samuel Alito admitted as much in his draft opinion jettisoning the constitutional right to abortion that the Supreme Court established in 1973’s Roe v. Wade and confirmed in 1992’s Planned Parenthood v. Casey. Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization – first reported on Monday night by Politico and confirmed as authentic on Tuesday by Chief Justice John Roberts – spends nearly 30 pages justifying the majority's defiance of stare decisis, the doctrine that calls for courts to stand by their own previous rulings.

That adherence to precedent, Alito conceded, serves several critical purposes. It fosters respect for the rule of law because it promotes even-handed decision-making. It protects people who have come to rely on established case law and discourages challengers from taking up the time of the court with endless re-litigation of settled controversies. And finally, Alito said, stare decisis “restrains judicial hubris,” by acknowledging that case law reflects accumulated wisdom, not merely temporary ideology.

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I write every day, as a commercial litigation columnist, about the practical implications of respecting Supreme Court precedent. It’s bedrock. Lawyers base their arguments on what the Supreme Court has said about the issues in their cases. Trial and appellate judges render rulings based on their interpretation of Supreme Court decisions. And when appellate courts reach different conclusions about how to apply Supreme Court precedent, lawyers and judges rely on the justices to resolve those splits, delivering rulings that stabilize federal law.

It’s no accident that petitions requesting Supreme Court review often invoke the word “chaos,” calling on the justices to restore order and predictability across federal courts. As Alexander Hamilton wrote in the Federalist Papers, “To avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”

The Supreme Court’s own legitimacy rests on the same underpinning of order and predictability. Just look at the court’s 1992 Casey opinion, which upheld Roe’s core constitutional protection for abortion. Abandoning Roe’s precedent, the Casey opinion said, would create doubts about whether the justices were caving to political pressure and repudiating the constitutional "principle on which the court staked its authority in the first instance.” Under that circumstance, the Casey court said, the cost of overruling Roe would be “profound and unnecessary damage to the court's legitimacy, and to the nation's commitment to the rule of law.”

Or look at a concurrence from Justice Brett Kavanaugh in 2020’s Ramos v. Louisiana, in which the court ruled that the 6th Amendment requires a jury to be unanimous to convict a defendant of a serious offense. Kavanaugh laid out a three-part test for when the justices can overturn their own precedent. It’s not enough, he said, for the court to conclude that a previous decision was wrong. Precedent must be “grievously or egregiously” wrong, with dire social consequences. And even then, Kavanaugh said, the justices have to be wary of the interests of people who rely on the precedent under scrutiny. Those considerations, he said, “constrain judicial discretion in deciding when to overrule an erroneous precedent,” in order to “maintain stability in the law.”

So why does Alito, who cited Kavanaugh's Ramos concurrence in his draft opinion in Dobbs, insist that stare decisis does not shield Roe? As an opening salvo, he points out that many of the Supreme Court’s seminal constitutional decisions — including 1954’s Brown v. Board of Education, which abolished the decades-old “separate but equal” precedent of Plessy v. Ferguson — overturned previous Supreme Court case law. If the justices had clung inexorably to stare decisis, Alito said, precedent from 1905’s Lochner v. New York would have prohibited state and federal workplace protections.

Previous rulings, he said, would have precluded same-sex marriage, 1st Amendment rights for school children and all manner of protection for criminal defendants. If the Supreme Court had been wholly unwilling to overturn its precedent, Alito wrote, “American constitutional law as we know it would be unrecognizable, and this would be a different country.”

Roe and Casey, he said, easily satisfy the tests for precedent that should be abandoned. The rulings, Alito contended, are egregiously wrong, with no grounding in history or in the text of the constitution. They have proved unworkable as a practical matter because of haziness in the line between permissible and overly burdensome restrictions imposed by states. And because abortion is not typically planned, Alito said, conventional ideas about reliance on the right to obtain an abortion do not apply.

Alito shrugged off the Casey court’s concern that overturning one of the most important civil rights cases in American history would shake public faith in the rule of law. “It is important for the public to perceive that our decisions are based on principle,” he wrote. “But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”

As you know, Supreme Court conservatives have been chipping away at the doctrine of stare decisis for a few years now. Reuters reported in 2019, for instance, on two rulings in the space of six weeks that overturned precedent, with Justice Clarence Thomas calling on his colleagues to ditch deference to the court’s previous rulings. It was clear even then that the goal for Thomas and his allies was to gut Roe.

And there’s no reason to think the court’s conservative majority will stop there, as my colleagues Lawrence Hurley and Andrew Chung reported in January. It’s no wonder that Alito’s draft opinion in Dobbs has sparked fear that other civil rights precedent could be in danger from a court unshackled by stare decisis.

For lawyers and judges in the commercial cases I usually write about, the apparently imminent destruction of Roe won’t have a direct effect. But think about Alito’s own discussion of the benefits of stare decisis, from respect for the rule of law to avoiding re-litigation of issues that have already been decided by the court. Those considerations matter in every case.

Read more:

Supreme Court's potential move to overturn abortion rights sets Democrats scrambling

Conservative U.S. justices draw criticism by overruling precedent again

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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.