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Litigation Journal

Fall 2022 | Work

Stare Decisis and the Supreme Court's Undoing Project

Kenneth R Berman


  • After Dobbs, many are justifiably worrying about what other important constitutional rulings are at risk.
  • Precedent is only as strong as the willingness of later generations of justices to respect it.
  • Constitutional decisions should rise or fall on whether they align with bedrock constitutional interpretive principles.
Stare Decisis and the Supreme Court's Undoing Project
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With Roe v. Wade’s reversal, we now have a clear picture of the Supreme Court’s “undoing project,” to borrow a phrase from Michael Lewis. Undoing precedent to pursue a different vision. Justice Thomas’s concurrence in Dobbs v. Jackson Women’s Health Organization signals that other landmark cases—Griswold, Lawrence, and Obergefell—are also in the crosshairs.

We’ve been taught that stare decisis—respect for settled precedent—is a stabilizer, the ballast that keeps the judicial ship steady. With a settled body of law, people can plan their lives, companies can plan their businesses, and lawyers can advise their clients with relative confidence. The rule of law can flourish.

A feature of horizontal stare decisis—the Court’s respect for its own precedent—is that it really comes into play only in a debate about the rectitude of the precedent. Otherwise, there would be no need to discuss it. The Court would just follow its earlier case without fanfare.

But the system needs some flexibility when the Court believes that a past decision was wrong. How else could mistakes be corrected or legal principles be adapted to discoveries, evolved thinking, or changes in circumstances?

The struggle between stability and flexibility led the Court to identify some factors to weigh when deciding whether to scrap a precedent. In Planned Parenthood v. Casey, the Court considered whether Roe’s ruling had become “intolerable simply in defying practical workability,” whether people had come to rely on it so that overruling it would create a hardship and impose inequity, whether the law had evolved beyond the rule and left the rule as a remnant of an abandoned doctrine, and whether new facts had robbed the rule of significant justification. Under those factors, the Casey Court held that Roe’s central rule was still good law.

Dobbs and Overruling Precedent

But in Dobbs, the Court considered somewhat different factors. After concluding that Roe was wrongly decided—thus teeing up whether it should be overruledthe Court considered the nature of the error, the quality of the reasoning, the workability of the rules that Roe and Casey “imposed on the country,” “their disruptive effect on other areas of the law, and the absence of concrete reliance.”

Why could one set of five or more justices use certain factors in deciding to ratify a precedent, while another set, decades later, uses other—similarly sounding but functionally different—factors in deciding to abandon the same precedent? To answer by saying “because they can” or “because there were five of them,” while true, is not very satisfying. If five justices really want to overrule a precedent, they will select factors that let them do that.

And that leads to a more fundamental question. What makes the justices who overrule any precedent right? The seven justices in Roe’s majority thought they were right as did the five justices in Casey’s. What gives the majority in Dobbs the moral authority to say not just that Roe was wrong but that it was “egregiously wrong from the start”? What makes them any more right than their predecessors whom they overruled?

That would be easy to answer if we could measure conflicting opinions against consensus principles of constitutional interpretation. But there are none.

Instead, the justices have their own interpretive philosophies. Those who voted to overturn Roe and Casey subscribe to “originalism” or its sibling “textualism,” which generally lean to literalness, shy away from finding or expanding individual rights, and treat claims of unenumerated or implied rights skeptically. This, despite the Ninth Amendment’s declaration that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Citing cases from the early 1800s, the Dobbs majority said that “Constitutional analysis must begin with ‘the language of the instrument,’ . . . which offers a ‘fixed standard’ for ascertaining what our founding document means.” It also used another factor: “this Nation’s history and tradition.” Because Roe and Casey had found an abortion right based on the Fourteenth Amendment, the Dobbs majority focused on the nation’s history and tradition when the Fourteenth Amendment was adopted, which the majority concluded was deeply antiabortion.

Expecting that taking away a 50-year-old constitutional right might undermine respect for the Court, the Dobbs majority devoted over a third of the opinion trying to justify why stare decisis did not require upholding Roe or Casey. Ironically, the Dobbs majority cited precedent for overruling precedent, specifically mentioning Brown v. Board of Education overruling Plessy v. Ferguson.

The irony cannot be overstated because the nine justices who decided Brown rejected originalistic principles, instead analyzing the Constitution through the lens of contemporary experience:

[W]e cannot turn the clock back to 1868 when the [Fourteenth] Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation.

That view reflects those of some contemporary justices who, rejecting originalism, believe that the Constitution is a living document that must be, as Justice Breyer said in NLRB v. Noel Canning, “interpreted in light of its text, purposes, and our whole experience as a nation.” Justice Breyer explained, “The Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries.”

Living constitutionalism is more hospitable to extending constitutional rights to situations not necessarily mentioned in the Constitution. While some constitutional rights are stated with precision, such as no person “in any criminal case shall be compelled to be a witness against himself,” many are stated only at high levels of generality. Those account for a great many constitutional rights and freedoms of long standing, thanks to adaptive constitutional interpretations.

The Constitution does not, for example, expressly say that prayer does not belong in public schools. But the Supreme Court in 1962 barred prayer from public schools based on the First Amendment principle that Congress shall make no law respecting the establishment of religion. That ruling made public schools more welcoming to all students, not just to students whose families subscribed to the dominant local religion.

Nor does the Constitution explicitly say whether people have a right to privacy. But the Court in 1965 found that such a right was implicit in a few of the enumerated rights. On that basis, the Court created a constitutional boundary to protect a couple’s right to use contraception.

And the Constitution does not expressly bar states from creating voting districts that put significantly more voters in some districts than in others. But in 1964, the Court, interpreting the Equal Protection Clause, found the practice unconstitutional because the practice dilutes the weight of someone’s vote based on place of residence, race, or economic status.

All Precedents Are at Risk

After Dobbs, many are justifiably worrying about what other important constitutional rulings are at risk. Scarily, they all are. Not even Marbury v. Madison (1803) (it is the Court’s duty “to say what the law is”) is safe. In 2019, the Court held in Rucho v. Common Cause that constitutional challenges to partisan gerrymandering present only political questions that cannot be reviewed in federal courts. That makes it far easier for dominant parties in state legislatures, through gerrymandering and its resulting vote dilution, to perpetuate their own dominance and remove the underpinnings of our democracy. (Wait for next year’s decision in Moore v. Harper.)

In the past quarter century, scholars and judges have talked about some cases being “superprecedents.” Professor Michael Gerhardt’s description mirrors what is commonly understood by the term: Certain cases are “so encrusted and deeply embedded in constitutional law that they have become practically immune to reconsideration and reversal . . . in short what may be sacred in American constitutional law.”

That’s not Justice Amy Coney Barrett’s view. She wrote that “superprecedents do not illustrate a super strong effect of stare decisis at all. . . . The force of these cases derives from the people, who have taken their validity off the Court’s agenda. Litigants do not challenge them.” In other words, superprecedents remain as precedent because no one would think of challenging them. The opportunity for overruling them thus never arises.

Or more accurately, no one would think of challenging them until some justices open the door by telegraphing their disdain for established case law, whether through dissents, writings in shadow docket cases, questions at oral argument, or indirect answers to questions at confirmation hearings. Those statements, like in Thomas’s Dobbs concurrence, begin the undoing process. They induce like-minded legislators to pass unconstitutional laws or like-minded government actors to engage in unconstitutional practices, hoping to stimulate lawsuits that might ascend to the Court and create the very opportunity to overrule the established—but, to them, unwelcome—precedent.

Justice Barrett is right. As long as justices are open to the idea of undoing constitutional rulings they find distasteful, no case will ever be a superprecedent in the way Professor Gerhardt envisions it. Nothing is sacred. Precedent is only as strong as the willingness of later generations of justices to respect it.

And that highlights the paradox of horizontal stare decisis. For those who genuinely believe that stare decisis is an overriding principle that required the Court in Dobbs to reaffirm Roe and Casey, what will they argue in a generation or two when a new set of justices is asked to overrule Dobbs? What will advocates say about stare decisis when they ask a future Court to reverse New York State Rifle & Pistol Association v. Bruen, which constitutionalized a right to carry a gun outside the home? Stare decisis works as an argument only for those who want to enshrine the earlier decision. Once that decision is overruled or a new case produces an undesired outcome, stare decisis turns from yesterday’s blessing into today’s curse.

What we need, then, is a new principle of constitutional interpretation to replace horizontal stare decisis. Rather than perpetuate constitutional decisions on the ground that the present must honor the past unless there is good reason not to, constitutional decisions should rise or fall on whether they align with bedrock constitutional interpretive principles. But what are they? Where can we find them?

The answer has been hiding in plain sight since 1787. It is in the Constitution’s preamble, for that is where we find the Constitution’s purpose:

in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity. . . .

The preamble should be the true-north filter for constitutional interpretation, for there is no clearer indication of what the founders wanted the Constitution to accomplish. In deciding, for example, whether to overrule Griswold v. Connecticut, which established a couple’s right to use contraception, the Court can be guided by two of the enumerated purposes—promoting the general welfare and securing the blessings of liberty. Those purposes point to retaining Griswold. None points to overruling it. And when history judges which of two irreconcilable decisions—let’s say Brown or Plessy, or Dobbs or Casey—most closely matches what the founders intended, the values enumerated in the preamble would be the best yardstick.

Consider the just-decided case West Virginia v. EPA: Six justices, in nullifying important carbon-emission regulations, gave us the “major questions doctrine,” requiring a “clear delegation” from Congress before an agency may make decisions of large economic and political significance. That ruling sharply limits an agency’s historical power, exercised since Congress first created federal agencies, to adopt beneficial regulations within its statutory mission. At least two of the enumerated purposes—forming a more perfect union and promoting the general welfare—support agencies having that power. None seems to point to undoing it.

Oddly, none of the best-known Court cases ever cited the preamble. Not Roe, Casey, or Brown. Not Griswold or Marbury. Not Miranda, Mapp, Gideon, Bakke, or Obergefell. It was unmentioned when the Court could have used it to help fortify respect for its decisions. And understandably it wasn’t mentioned in Dobbs, Plessy, or Dred Scott (except in the dissent), for the holdings of those cases pair poorly with the preamble.

Of course, cynics might reject the preamble as an unworkable guideline, arguing that some preamble values will sometimes point in opposite directions. For example, creating procedural protections for criminal defendants might help to establish justice and form a more perfect union, while some might argue that those protections make it harder to produce convictions, thus undermining the goals of ensuring domestic tranquility and promoting the general welfare.

Those kinds of disagreements should not lead us to shy away from the preamble’s interpretative force. Those disagreements can often be resolved by focusing on what outcome best represents the ideals the preamble embraces. Do we really want to be a country where efficiency in producing convictions comes at the expense of increasing the rate of wrongful convictions? Any fair reading of the preamble as a whole would suggest that the answer is no and that ensuring domestic tranquility and promoting the general welfare must refer to something other than sending people to prison without a fair trial.

At the Dobbs oral argument, Justice Sotomayor warned that, if the Court were to overrule Roe and Casey, the Court would not survive the “stench . . . in the public perception that the Constitution and its reading are just political acts.” She accurately predicted the public’s perception. In fact, Dobbs has also cleaved the legal community: Some believe that, in Dobbs’s wake, lawyers should defend the Court’s integrity. Others believe that, when the Court itself undermines the public’s trust, lawyers should voice their criticism, register their objections, and urge the Court to self-correct or Congress to change the Court in some way.

But suppose the legal community, law professors, and the judiciary could all agree that the preamble provides a unifying set of principles for resolving constitutional issues and evaluating the Court’s decisions. Then perhaps the Court’s undoing project would in time lose its footing, and we’d be back on the road to rebuilding a more perfect union, promoting the general welfare, establishing justice, and securing the blessings of liberty for ourselves and our posterity.