Unprecedented.

This is Part 2 of a series examining the Supreme Court in light of its recent, radical rulings. Today’s topic is “stare decisis”—the principle of “standing by things decided.” It is a principle the Court has now abandoned in alarming ways.

Image courtesy of Curiocity.com

“The law should evolve rather than lurch.”  — David Litt, author and former speechwriter for President Obama

When we think about the Supreme Court, we often picture a group of nine justices, appointed for life, who get to decide the biggest cases in our country. But if that was all they were, the Supreme Court would just be a bunch of opinionated folks in robes.

What once made the Supreme Court a respected institution was its tie to a long history of decisions, issued since near the birth of our nation, and willingness to continue that line. Those opinions, filling thousands of volumes, are intended to act as a restraint upon the justices’ actions because of the importance of case precedent. That is to say, the law ought to build upon itself, bit by bit. It should be far larger than the people who decide it, and it should long outlive them. What has come before comprises a solid and revered foundation, taught in law schools to idealistic young future lawyers everywhere.

I was once one of them.

Because of the value of stare decisis, it should be a rare thing to overrule another Supreme Court decision. If the institution is getting things right, it is slowly guiding us, case by case, to that more perfect union. Opinions that go too far can later be curtailed, chipped away at around the edges. Rarely are they discarded wholesale. To do so undercuts the foundations of the law, with the whole edifice at risk of toppling.

Today I want to look at two blockbusting moves by the Court: First, the Dobbs decision in 2022 overturning 50 years of precedent on abortion rights under Roe v. Wade and Casey v. Planned Parenthood, and second, the Students for Fair Admissions decision overtuning decades of law allowing race-based affirmative action on college and university campuses.

These two opinions will help illuminate how the Supreme Court has turned stare decisis on its head. They help explain why public confidence in the institution of the Court has collapsed, and why they seem a lot more like just a bunch of opinionated people in robes these days. And that has serious consequences for the rule of law and democracy.

Aborting Roe

When the Court overturned Roe v. Wade last year with the Dobbs decision, it reversed not just one case but a whole line of precedent, including the Casey opinion which had already taken a hard look at Roe and reaffirmed the central holding granting a federal constitutional right to abortion before viability of the fetus at around 24 weeks.

When many of the radical justices—Alito, Gorsuch, Kavanaugh and Barrett— went before the Senate for confirmation, they all made it clear at the time that they intended to abide by stare decisis, rather than impose their own personal views. With Roe and Casey as the law of the land, abortion rights were “precedent upon precedent” and very much settled law that they would not touch.

They lied. 

In his majority opinion, a triumphant Justice Alito claimed in Dobbs that five considerations now weighed heavily in favor of overturning Roe. 

• The nature of the error of that decision;

• The quality of its reasoning;

• The ‘workability’ of the rules imposed on the country;

• Their disruptive effect on other areas of the law; and

• The absence of concrete reliance.

Alito went into the case with a mission and unsurprisingly found that each of these factors pointed toward a need to overrule Roe wholesale. In so deciding, he disingenuously cited other instances where the Court had overruled established precedent, such as in Plessy v. Ferguson, which had wrongly upheld racial segregation under the bogus principle of “separate but equal” accommodations for the races. (They were separate but never equal.)

It is true that the Court has from time to time has been willing to overrule its prior decisions, such as in Plessy or Bowers v. Hardwick, which permitted the criminalization of consensual gay intimacy. But the overturning of these cases always felt like a march toward a better, more inclusive America: more rights, less oppression, greater freedom, more inclusion.

In overruling those decisions, there was a perceived need to correct grave past wrongs against minority groups, sometimes known as “protected classes,” which historically had been discriminated against and lacked political power to assert their full rights. Plessy and Bowers were cases steeped in animus and prejudice against Blacks and LGBTQ+ people; the Court was acting as a backstop for the law where the political process had failed to guarantee equality and freedom. 

It had never before acted to take away a constitutional right that had been previously granted, as it did in Dobbs.

Further, in seminal cases like Brown v. Board of Education, the Court sought to reflect the progress that the American public itself had made toward greater racial equality and opportunity. That Brown was unanimously decided mattered a great deal for the unity of the country. Dobbs, on the other hand, reflects one thing only: a shift in the composition of the Court. Three new right-wing justices, all of whom were appointed under highly charged and legally dubious circumstances, made up the new radical majority. Most Americans want the protections Roe afforded, but the Court sided with extremists in pushing a long-sought political agenda.

The Court’s three liberals were passionate in their dissent and succinctly captured what was really going on: “The Court reverses course today for one reason and one reason only: because the composition of this court has changed.”

Affirmative Axing

The same story played out last Thursday when the Court announced that, going forward, it was forbidding the use of race-conscious admissions in U.S. colleges and universities. Affirmative action was no more, at least for racial minorities. (Legacy admissions are alive and well.)

To get to that result, it again had to trample decades of established precedent. Rewind to 1978, in the case of University of California v. Bakke. Justice Lewis Powell, hardly a flaming liberal, explained in his opinion that academic institutions have a compelling interest in seeking to have a diverse student body. They therefore could use race as one of many factors in admissions decisions, because that would enhance diversity, which would lead to a more pluralistic, less racially-stratified nation. 

With echoes of Roe and Casey, the Supreme Court reaffirmed Bakke in 2003 in Grutter v. Bollinger and then for good measure again seven years ago in Fisher v. University of Texas, Austin. It’s fair to say that for decades, universities across the country have relied upon these rulings to run their admissions policies.

Justice Sandra Day O’Connor, herself no liberal, explained in Grutter that preparing students for the realities of our diverse society requires that they experience diversity in their education. That not only makes common sense, it squares with the documented experience of educators.

To come in with a new majority and overturn this long line of precedent undermines faith in the Court and the principle of stare decisis. And it cheats future students out of the richness of learning as part of a diverse student body, which had been enjoyed by students before them for decades. 

Moreover, as constitutional law professor Erwin Chemerinsky pointed out, the very same radical justices who claim to be originalists and textualists also ignored the plain history of the 14th Amendment, where the Congress that adopted it passed race-conscious programs to help newly freed Black Americans. 

Justice Sotomayor called out the majority for ignoring the fact that affirmative action has been upheld over and over by the court. And she noted the irony of using the supposed “colorblindness” of the law to actually further racial inequity:

The Court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. The Court subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.

As David Litt observed, stare decisis should be “the legal equivalent of choosing renovation over demolition.” That’s why what the Court has done over the past two terms, in particularly with Dobbs and Students for Fair Admissions, is so alarming and destructive. Rather than improve around the edges of our legal edifice, the extremist majority has truly played legal Jenga with it, removing key legal building blocks that should have remained untouched. 

The structure is now quite wobbly, and it will take much time to repair, even if we can ever reclaim a majority willing to return to traditional notions of foundational precedent.