Let What Decision Stand? Understanding Stare Decisis in a Post-Roe World
Source: J. Scott Applewhite/AP
On June 24th, 2022, shock waves rang throughout the nation as the Supreme Court issued its long-awaited ruling in Dobbs v. Jackson Women’s Health Organization. In one of the most consequential decisions in its history, the Court overruled Roe v. Wade and Planned Parenthood v. Casey, the landmark cases that established a constitutional right to obtain an abortion. Yet, with its decision in Dobbs, the newly-constructed conservative Court scrapped nearly 50 years of precedent, much to the dismay of over 60% of Americans (Pew Research). Now, the fate of abortion returns to the states, with a handful of state legislatures already proposing harsh restrictions on the procedure that many had come to rely on.
Notwithstanding the real-world implications of the decision, the crux of Dobbs came down to a judicial doctrine called stare decisis, or “let the decision stand.” Though not explicitly outlined in the Constitution, stare decisis operates as a judicial policy to allow the Court to maintain stability in its decision-making (Cornell Legal Information Institute). This Latin moniker represented the heart of the defense of abortion rights; since Roe and Casey had previously guaranteed the right, the Court should align with its past judgment, not contradict it. The majority in Dobbs nevertheless disagreed, arguing that when precedent conflicts with the Constitution, the latter must prevail (597 U.S.___, 7 (2022)).
Still, the Court’s decision in Dobbs raises a series of important questions. Namely, who gets to decide what precedents should be kept or discarded? Would, say, nine justices of different ideological backgrounds have decided instead to uphold Roe? What, then, becomes the value of precedent? Consequently, the Court’s decision to overturn Roe and Casey elicits another critical question that will not only define future jurisprudence, but American society altogether: what does stare decisis mean anymore?
To understand the extent of such a perplexing problem, it is worth examining the background of stare decisis. Stare decisis originated in common law-England—a system that greatly influenced the nascent American judiciary—whereby judicial precedent created unwritten laws that demanded the same adherence as textual provisions. In practice, stare decisis attempts to ensure consistent rulings in cases with similar circumstances. For example, since the Court had decided in McCulloch v. Maryland that states cannot levy taxes against the federal government, stare decisis would instruct justices to understand this decision as an established doctrine that states should not violate in the future. However, stare decisis is not absolute. Justices are free to consider whether previous courts issued an unworkable or erroneous decision. So, if the justices approve of a precedent, they will uphold it. But if they believe that a precedent is bad, they are allowed to overrule it. In other words, stare decisis is both a pressing force and a passing afterthought. Confused yet?
Any reasonable observer of the Supreme Court’s history will agree that there is such a thing as “bad precedent.” Indeed, a plethora of cases demonstrate the undeniable evil wrought by the Court upon the people. For instance, Dred Scott v. Sandford denied American citizenship to enslaved Black people. Plessy v. Ferguson, decided less than forty years later, established the “separate but equal” doctrine of the Jim Crow South, which remained the law of the land for over half of a century. Roughly 50 years later, Korematsu v. United States affirmed the legality of Japanese internment during World War II. Through its perpetuation of irrefutable bigotry, the Court left a series of bad precedents in its wake. However, if the Court was unwilling to overturn such precedents based on respect for stare decisis, the country would still have segregated water fountains. Perhaps, then, dismissing long-lasting precedent can be a necessary feat.
But what happens when we like precedent? For as many Supreme Court decisions that deserve admonition, even scorn, a myriad of cases have proven critical to the functioning of the American government. Marbury v. Madison established judicial review, enabling the Court to deem governmental policies and actions as unconstitutional. Since the milestone decision over 200 years ago, the Court has utilized judicial review to strike down discriminatory laws and practices. Consider Brown v. Board of Education (which overruled Plessy in spite of stare decisis), for that matter. There, the Court held that school segregation violated the Constitution, serving as the impetus for the Civil Rights Movement. If there exists such a thing as a “good precedent,” then there must be a means of enshrining it in the law—stare decisis—such that no future partisan Court can deprive people of the rights these cases have guaranteed.
Starting to see the problem? If precedent can be both bad and good—worthy of overturning or protecting—what, then, is the use of stare decisis, or precedent for that matter? Without a clear line drawn, it is impossible to give a consistent answer. This is to say that if some precedents are good and some are bad, and stare decisis should only apply to good precedents, the very structure of the law begins to decay. Worse, if we can no longer agree on what qualifies as “good” or “bad” precedent, as are the present circumstances around abortion jurisprudence, even our convoluted understanding collapses. In recent years, it has become painfully clear that the inconsistent application of stare decisis undermines the public’s confidence in the law; irony at its finest, since stare decisis is designed to strengthen the public’s trust.
Such frustration is increasingly evident among the American people. In the aftermath of Roe’s overruling, hundreds of thousands of infuriated citizens took to the streets in protest, concerned that a hyper-politicized Court had, in this one decision, eradicated abortion rights that it had previously upheld for generations. Distraught Americans feared that the rights that parents had depended upon no longer applied to their progeny. To them, it seemed that the ideological makeup of the Court had trumped stare decisis.
But should we be surprised? It is no secret that justices frequently look beyond established precedent when making decisions. Though Senate confirmation hearings may convey a faux sense of respect for settled law, history tells us that justices too are political creatures. Consider William Howard Taft, the only man in history to serve as both the President of the United States—an expressly political office—and as Chief Justice of the Supreme Court. (Surprising no one, Chief Justice Taft consistently ruled in favor of expanding executive power; consider Myers v. United States and Ex Parte Grossman.) This is not an exclusively partisan problem either. Indeed, the answers given by now-Justice Ketanji Brown Jackson about respecting precedent during her confirmation proceedings were nearly identical to those given by President Trump’s three picks, even though their judicial philosophies could not be further removed. Each justice will certainly treat precedent differently, and each one will upset (or elate) their fair share of Americans in the process. To be sure, the cherry-picking of precedent when politically convenient is not conducive to a society that respects the rule of law. But, as is so common in today’s polarized America, we will continue to cheer or mourn when the Court sides with one political interest.
There is little doubt that the issue of abortion will once again find itself before the Supreme Court. Questions about medical abortions or traveling across state lines to obtain an abortion are already creating a stir in legal circles. However, the most intriguing facet of the Dobbs decision, with respect to stare decisis, is that we have now switched sides. Although stare decisis served as the main defense mechanism for Roe v. Wade, it is likely that supporters of Dobbs, who rallied against abortion precedent before the decision, will now demand respect for stare decisis in future abortion cases. Conversely, the pro-choice advocates who attempted to use stare decisis to save Roe will now hold contempt for the anti-choice Dobbs precedent and seek its reversal. Such ideological dissonance further demonstrates our striking ineptitude in determining the meaning of stare decisis.
So, basically, we’re stuck. We cannot unequivocally endorse or repudiate—or even define—stare decisis because it is not politically advantageous to do so. Even if we have no idea what the doctrine means, we still want to use it to our benefit—but never to our opponent’s. And until we take a firm stance, there is only one definition that we can be sure of: stare decisis means whatever the Court says it does.
References
https://abalegalfactcheck.com/articles/stare-decisis.html
https://www.law.cornell.edu/wex/stare_decisis
https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf