Hi, I’m Danny Karon, your Lovable Lawyer, here with your quick shot of legal wellness. Everyone is talking about the Supreme Court’s landmark decision, Dobbs v. Jackson Women’s Health Organization and how it overrules Roe v. Wade.
What interests me about the decision, in addition to its ruling of course, is how the court reached it. Just how did it legally justify overruling Roe? I mean this is the Supreme Court, it’s not like they could just say we don’t like Roe so we’re going to overrule it. No, they needed to channel their decision through the law. But, no one’s asking the question: if Roe was the Supreme Court’s own decision, how can the court overrule itself? Now, lower courts often get things wrong by not following Supreme Court precedent. When that happens, the Supreme Court routinely overrules them, but that’s not what happened here. So, again, how can the court overrule itself? Well, it starts by understanding a doctrine known as stare decisis. Stare decisis is Latin for “to stand by things decided” and it’s one of our legal system’s bedrock foundational concepts. Our legal system embraces stare decisis so that when a court faces the legal argument, if an earlier court already ruled on the issue, the court can know how to rule consistent with that earlier one. That’s why I said a second ago that the Supreme Court overrules lower courts when they don’t rule consistent with its decisions. Without stare decisis, things would be a mess. Courts would have nothing to guide their decisions and rulings would be all over the place.
With this concept in mind, let’s turn to Dobbs. There, the court held, or ruled, that the constitution doesn’t confer a right to an abortion despite what the court held in Roe. And in a companion case, Planned Parenthood v. Casey. I’m just going to refer to those two cases together as Roe. It’s easier that way. But the court couldn’t go there without addressing Roe and why? Because of stare decisis. This meant criticizing Roe but not in a sour grape sort of way. Instead, after lauding the importance of stare decisions and explaining how it contributes to the integrity of the judicial process, the court said stare decisis is not an absolute command, especially where the constitution is concerned. Then, it walked through factors it considers when deciding whether to overrule itself. I’m just going to hit the big ones: first, the court considered the nature of its error and concluded that Roe was egregiously wrong and on a collision course with the constitution from the day it was decided. In other words, the court simply thought Roe got it wrong. Second, the court considered the quality of its earlier reasoning and explained that it wasn’t grounded in constitutional text, history, or precedent. To me, this kind of sounds like the first one. Third, the court claimed that its earlier decisions just weren’t workable. Now, taken together, the court ruled that its own precedent, while subject to principles of stare decisis, of course, wasn’t set in stone, yet added that its job was to interpret the law applying long-standing principles of stare decisis.
So, what’s the lesson in all of this? To me, the lesson is that upending stare decisis undermines doctrinal stability. It’ll make precedent meaningless and make it harder for the public to know and understand the law. It’ll also undermine legal consistency by allowing lower courts to deviate from Supreme Court precedent that they believe is wrong. What lies ahead for Supreme Court precedent concerning gay marriage, contraceptives, or the right to engage in private consensual sexual acts is anybody’s guess, although Justice Thomas, in his concurrence, teed these issues up. So surely there’s more to come and I’ll do my best to keep you posted.
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