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February 17, 2023

Protected: Unsettling Settled Law?

The Doctrine of Stare Decisis After Dobbs v. Jackson Women’s Health Organization

By: Jaletta Smith

At this year’s AJEI Summit, two panelists debated the scope and role of the stare decisis doctrine in today’s Supreme Court.

Professor Randy Kozell of the University of Notre Dame Law School started by discussing three facets of stare decisis as they relate to the Dobbs decision. The first was precedential scope versus strength. In his view, the commentary surrounding Dobbs often focused on the precedential strength of Roe v. Wade. That is, what showing should be required to overturn a precedent that everyone concedes is on point. But this discussion is incomplete because it omits the question of precedential scope. Precedential scope analyzes the universe of instances in which a precedent is binding. Scope, therefore, requires an examination of holding versus dicta, what matters versus what does not.

Second, Professor Kozell discussed was statutory versus constitutional deference. Generally, stare decisis provides that statutory precedents are entitled to greater deference than constitutional interpretation because Congress can overrule the courts. In contrast, Article 5 makes it hard to amend the federal Constitution.

Third, Professor Kozell of the University of Texas School of Law introduced the concepts of horizontal and vertical precedent. Horizontal precedent is how a court binds itself and vertical stare decisis describes whether a precedent is binding to other courts in a hierarchy. When asking whether to overrule horizontal precedent, stare decisis requires that courts examine procedural workability, factual or legal changes, age, dissents, reliance expectations, and wrongness. Wrongness, in particular, is a point of discussion between the Dobbs majority and dissents. Wrongness is a continuum of sorts, not an “on/off” switch. At the far end, egregiously wrong precedents are more susceptible to overruling.

At this point, Professor Tara Grove expanded on wrongness by discussing three types of legitimacy: legal, moral, and sociological (or public reputation). She contends that it is unclear whether the public cares that the Court adheres to precedent. Instead, the public cares about whether they agree with the decision reached. For the final type of legitimacy listed, sociological, adherence to stare decisis may not matter much. But it could matter to legal legitimacy because applying a consistent approach leads lawyers to believe that the Court is acting impartially.

But Professor Grove was quick to point out that questions of legitimacy in the wake of Dobbs are not totally the Justices’ fault. The Court does many things that have nothing to do with politics, but those often go unaddressed in the public square. And the media often identifies justices and other judges by the appointing president, which may reinforce the idea that appointees act politically. Professor Kozell added that how we talk about stare decisis also impacts perceived legitimacy. For example, justices may vote to deny certiorari in a case that they would have overruled on the merits. Because the Court uses the certiorari process to uphold precedent, the media may not pay as much attention.

At this point, the discussion considered why judges adhere to stare decisis and whether applying certain methodologies results in placing a higher value on the doctrine than others. One reason judges adhere to stare decisis is because it makes their job easier. They don’t have to reanalyze an issue that has already been decided. Second, a judge may undermine their own precedents by taking stare decisis too cavalierly.

The discussion then examined methodologies. Professor Kozell sees some relationship between methodologies and stare decisis regarding whether a precedent is manifestly wrong. Precedent matters if it adheres to the judge’s own methodology. In other words, if the prior opinion employs the same methodology, then the judge might defer. But if it employs a different methodology then the judge may overrule it. This approach may signal a breakdown of the bridges between judges who apply different methodologies or philosophies. Professor Grove contended that textualists and originalists use the wrongness factor to disregard precedents that lack a focus on history or tradition. But manifestly wrong is only one part of the stare decisis analysis. It should not alone be sufficient to overrule precedent. Instead, even textualists or originalists should have to address workability, reliance, and whether the underlying law or facts have changed.

Reliance is one area that remains remarkably unclear. Courts have traditionally looked to contract law and property rights as establishing reliance. But not all reliance interests are measured in economic interests. For example, women may have had a reliance interest in not carrying a pregnancy to term when they conceived. Does it count as reliance if it is psychological in nature? Likewise, the ability to participate in the workforce is hard to measure. Perhaps that is a sign that the issue should be left to the other branches, and we should look to institutions that are better at collecting facts. In that vein, maybe district courts should be tasked with making reliance findings before a case reaches the appellate courts. That leads to a question of institutional capacity to determine reliance and whether reliance interests can be measured empirically. Miranda, for example, has become part of our national consciousness, which sounds like a similar appeal to the type of indirect or broad societal reliance that some commentators have discussed post-Dobbs. Grove posited that Dobbs may be susceptible to overruling based on lack of reliance. State legislatures may rely on the idea that they can rewrite statutes or exercise control over abortion laws, but is that a type of reliance that Dobbs itself would even consider? Should courts give any weight to this type of “legislative reliance?”

Lastly, the panelists discussed an emerging trend for judges to examine the origins of the stare decisis doctrine itself. The Court has applied stare decisis but never really pinned down its origins. Justice Clarence Thomas has floated the idea that the Constitution itself may be an impediment to stare decisis. After all, if judges take an oath to uphold the Constitution, are they bound to overrule a precedent that is incorrect under that Constitution? Justice Kavanaugh, in contrast, has started to write about the Article III origins of stare decisis. Under that view, the Article III judicial power entails the creation of precedents and thus may be a source of constitutional support for stare decisis.

Judges write for multiple audiences, some trained in the legal profession and others who are not. Stare decisis may promote legitimacy by encouraging judges to adhere to precedents with which they disagree. Or it may hinder legitimacy by encouraging judges to uphold precedents that are viewed as wrongly decided. In the end, the panelists seemed to agree that stare decisis remains a complex and evolving doctrine before the Court. They both expressed a concern about what “flip flopping” of precedents says about the rule of law. Even if what happened before was incorrect, overruling precedents can implicate the rule of law in significant ways.

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Jaletta Smith

Gwinnett County State Court

Jaletta Smith is a Judge on the Gwinnett County State Court (Georgia). Before her judicial appointment, Jaletta was an appellate litigation associate at Andersen, Tate & Carr P.C., in Duluth, Georgia. Jaletta served as a law clerk on two state appellate courts (Arkansas Supreme Court and Georgia Supreme Court) and a federal district court (Eastern District of Arkansas). Jaletta graduated with high honors from the University of Arkansas at Little Rock, Bowen School of Law.