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Stare Decisis, The Supreme Court, And Roe

In a post last week, I highlighted the utter meaninglessness of U.S. Sen. Susan Collins' (R-Maine) claim that she would look for a Supreme Court nominee who respects precedent. The claim was bunk, I wrote, because Collins had professed that Justice Neil Gorsuch, whom she voted to confirm to the Supreme Court, was, in her view, a pillar of a judge who respects precedent. As I explained, in his first full term on the Court, Gorsuch voted to overrule or suggested he was open to overruling a prior precedent in 11 of the 60 cases heard.

Also last week, Rich Chen, a professor at Maine Law, wrote an Op-Ed for the Portland, Maine Press Herald offering some other reasons why Collins' promise to look for a nominee who respects precedent was utterly meaningless. As Rich observed, all judges respect precedent and believe in stare decisis (the doctrine that says even wrong decisions shouldn't necessarily be overruled). All judges also believe that respect for precedent and stare decisis are not inviolable and have exceptions; thus, all judges believe that some precedents can and should be overruled. The real question is which ones, and under what circumstances. (Here's a spoiler for you, Susan: Roe v. Wade,* and preferably soon.)

Rich also flagged that judges also believe that "incorrect" precedents can be chipped away and limited basically to their facts. That is, judges can adopt unpersuasive distinctions and silly arguments to limit the reach of a prior decision.

In another post last week, I elaborated on two of the ways that I think the modified Court will do that to Roe (I am still unsure that the Court will explicitly overrule it, at least in the short term, but frankly don't think that matters a good deal for many of the women who will be affected). One is by diluting the undue burden standard so it does not require any meaningful scrutiny of a state's purpose, or pay attention to a law's effects short of outright criminalization of abortion during the first trimester. The other is by expanding the government's interest in avoiding "facilitation" of abortions or "complicity" in them.

As I noted in this paper, these efforts at limiting Roe are well under way. Asher Steinberg wrote a post over the weekend that showcased several times Judge Brent Kavanaugh [now officially the nominee] has done this - that is, adopting arguments merely to limit the reach of a prior decision that some view as unpersuasive.

For now, however, I'd like to continue to press on Collins' absurd claim that when a nominee professes to believe in stare decisis and respect for precedent, the nominee will never overrule a prior Supreme Court case.

Again, the reality is that everyone believes in stare decisis to some extent, and also that everyone believes it has exceptions. As further proof of the fact that the Supreme Court sometimes overrules precedent and changes the law (a proposition so banal that, frankly, I did not think I would ever need to demonstrate its truth), consider two of the cases that are already on the Court's docket for next year:

* Gamble v. United States, in which the question the Court is being asked is "whether to overrule the 'separate sovereigns' exception to the double jeopardy clause."

* Franchise Tax Board v. Hyatt, in which the question the Court is being asked is "Whether Nevada v. Hall, which permits a sovereign state to be haled into another state's courts without its consent, should be overruled."

Also on the Court's docket is Gundy v. United States, in which the Court is being asked to invalidate a law on "non-delegation" grounds, something which it hasn't done since 1935.

The point is that the Court is (not infrequently) asked to change the law. And sometimes it takes up that invitation. Just look at the Court's docket from last term, when it frontally and explicitly overruled several cases (for reasons such as that the prior case was "poorly reasoned"), and substantially modified others.

It is not hard, nor is it rocket science, to recognize that all judges and judicial nominees believe in, and will profess a belief in stare decisis. It is also not hard to recognize that all judges and judicial nominees believe that stare decisis notwithstanding, some cases should be overruled, or limited essentially to their facts. Susan Collins knows this too. She just won't do anything about it.

* I'm using Roe as a stand-in for Casey.

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Comments welcome.

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1. From Steve Rhodes:

The point Litman rightly makes here is so blindingly obvious ("a proposition so banal that, frankly, I did not think I would ever need to demonstrate its truth") that the media ought to be taken to task for its utter ignorance in going along with the narrative of Collins and others - and the upcoming political theater thereof - when it comes to stare decisis. Every judge believes in the importance of precedence - until they don't! Otherwise, Plessy v. Ferguson would still be the law of the land.



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Posted on July 10, 2018


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