Decisions, Decisions: Unpacking Our Departure From Stare Decisis
Black robes, eloquent opinions, the seemingly indisputable finality of a gavel’s firm bang. The United States Supreme Court has long held the incredibly demanding role of deciding the nation’s most complex and contentious legal cases, most of which must overcome numerous appeals in order to reach the highest American court. Supreme Court decisions are typically considered final: once a case reaches the Supreme Court, there is no further court with higher jurisdiction in which to file an appeal. Moreover, the outcomes of court decisions are added to the ever-growing repertoire of legal precedent, which means that future court decisions on similar matters will follow prior holdings. This is also known as the doctrine of “stare decisis.”
Recently, the overruling of landmark Supreme Court cases is marking a notable trend—one with considerable implications for the legal and political landscape of the United States. Perhaps the most well-known example is the overruling of Roe v. Wade (1973) with Dobbs v. Jackson Women’s Health Organization (2022). The decision in Roe v. Wade held that a woman’s right to choose whether or not to have an abortion was a “right to privacy” enshrined in the Due Process Clause of the Fourteenth Amendment. It had protected Americans’ reproductive rights in the first trimester of pregnancy from potential state-level restrictions for close to fifty years. In 1992, the holding in Planned Parenthood of Southeastern Pennsylvania v. Casey built on the precedent that Roe set; the Supreme Court ruled against state abortion regulations that created an “undue burden” to a woman seeking an abortion in a timely manner (“before the fetus attains viability”). In essence, this ruling functioned as a federal protection against any state laws that would unreasonably prevent a woman from seeking an abortion in the early stages of her pregnancy.
However, all of this changed with Dobbs v. Jackson Women's Health Organization in 2022, when the Supreme Court ruled in a 6-3 decision that Missippippi’s “Gestational Age Act,” which banned all abortions after fifteen weeks of pregnancy (barring a few exceptions), was constitutional, and ruled in a contentious 5-4 decision that the right to abortion is not enshrined within the Constitution, overruling both Roe and Planned Parenthood of Southeastern Pennsylvania. This relegated regulation of abortions and other reproductive care to the states, meaning reproductive rights could consequently differ from state to state.
While the Dobbs decision caused perhaps the greatest national uproar following a Supreme Court ruling in recent times—especially amongst women and young people—it is certainly not the only recent instance of significant precedent being overruled. In 2024, the longstanding doctrine of Chevron deference was overruled in the case Loper Bright Enterprises v. Raimondo (2024). Chevron deference, originally established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), is essentially the idea that in the absence of explicit federal law, the judiciary should defer to the relevant regulatory agency on a given matter, as long as the agency’s interpretation is reasonable and Congress has not otherwise addressed the matter. The Supreme Court Opinion in Loper allocates the authority and duty to determine whether agencies’ actions are in accordance with relevant statutes with the courts, resulting in a significant shift of power to the judiciary.
The Supreme Court scratching out and discarding rulings that were once thought to be untouchable begs the question: why does legal precedent matter? Legal precedent, also known as “stare decisis” (meaning “to stand by things decided” in Latin), is the idea that courts must make decisions in line with the reasoning used and facts established in past decisions concerning relevant issues. Stare decisis applies horizontally, meaning a court should follow its own precedent, and also vertically, meaning a court should follow the precedent set by a higher court. Theoretically, precedent should only be overruled where “following precedent may lead…to unjust outcomes.” The American judicial system inherited stare decisis from English common law, where the doctrine was first articulated by English jurist William Blackstone in 1765. He believed that judges “[abiding] by former precedents, where the same points come again in litigation,” barring those precedents being “flatly absurd or unjust,” would foster legal stability. In the American legal tradition, stare decisis moreover functions as a means of checking on judges’ ability to interpret ambiguity in legal texts at their own discretion.
Although in the United States stare decisis operates more as a guiding principle than as a binding rule, it is thought to promote legal predictability and stability. According to Richard Fallon, the Story Professor of Law at Harvard Law School, experts who “have argued that adherence to precedent is crucial to the Supreme Court’s legitimacy,” have concerns about the Supreme Court being seen as “just another partisan institution.” Essentially, Fallon asserts that stare decisis differentiates the Supreme Court from other parts of the government that are controlled by one political party or the other at various times- regardless of which political party currently holds the presidency or the majority in either chamber of Congress, the Supreme Court continues to make decisions in line with the same precedent. This underscores its legitimacy as a nonpartisan institution, which is critical for the nation’s highest court.
In some cases, overruling precedent is not only advisable but urgently necessary, as with, for instance, Brown v. Board of Education, which overruled Plessy v. Ferguson. Plessy v. Ferguson (1896) was a landmark Supreme Court case established that “separate but equal” treatment or facilities for people of color was lawful, providing legal basis for decades of Jim Crow laws instating racial segregation. It was not until Brown v. Board of Education (1954), in which the Supreme Court ruled that racial segregation in public schools was unconstitutional, that the doctrine of “separate but equal” was thrown out. In this case, therefore, overruling a past holding was critical to advancing the civil rights movement by ending legalized racial segregation. However, there is a careful balance that must be maintained between amending any previous judicial errors in judgment and upholding legal stability. If there is no adherence to precedent, there is no legal predictability—the Supreme Court could use a certain line of reasoning and come to a certain decision regarding one matter, and come to a completely different conclusion for a similar matter. This would not only undermine legal stability, but also decrease the legitimacy of the Supreme Court in the eyes of the people.
The adverse effects of overruling precedent on legal stability can be observed in the aftermath of the Dobbs decision. Since the ruling, there has been an onslaught of complex and imminent problems in the realm of reproductive care, including highly restrictive abortion state-level abortion bans, medical professionals worried about facing lawsuits for providing reproductive care, and an increase in “mortality, racial and ethnic inequities in maternal health”. A KFF survey published in 2023 found there to be “widespread confusion about whether the use of mifepristone for abortion is legal,” with 45% of the public reporting that they are “unsure” about the availability of medication abortion in their state. This pervading lack of certainty regarding what is permissible and what might result in prosecution, as well as the very real and grave threats to people’s lives that this uncertainty poses, are the effects of the legal instability caused by the Supreme Court’s departure from stare decisis.
In addition to legal stability, political stability has also been affected by the overruling of past Supreme Court decisions. The Dobbs decision has galvanized conversations about expanding the Supreme Court so that conservative justices, who currently hold the majority in the court, would have less influence So much so, in fact, that Senator Ron Wyden (D-Oregon) recently introduced a bill that would increase the size of the Supreme Court from nine justices to fifteen over the span of twelve years. Senator Wyden specifically cited the increase in instances of precedent being overruled as his motivation for advocating the bill: “You’ve got this thoroughly politicized process resulting in a Supreme Court that now frequently issues sweeping rulings to overturn laws and upend precedents. We are proposing a way to restore some balance between the three branches of government.”
However, the scope of Senator Wyden’s bill extends beyond just increasing the size of the court. Some of the proposed reforms include instating stricter requirements to overturn laws passed by Congress in order to check the power of the judicial branch (the system of courts and judges), staggering nominations for the six additional justices over multiple administrations to prevent one political party from being disproportionately represented, and requiring more frequent and thorough IRS tax audits of justices to promote greater transparency. Senator Wyden’s bill is not the first of its kind, either—in 2023, a group of senators and Congress members led by Senator Ed Markey (D-Massachusetts) reintroduced the Judiciary Act of 2023, which would expand the Supreme Court by four justices, also with the goal of “[restoring] its legitimacy.”
Proposed reforms to the Supreme Court, such as a binding ethics code, term limits, age limits, and more, serve to indicate that the legitimacy and institutional integrity of the Supreme Court have come under fire.
According to the Pew Research Center, as of August 2024, less than 47% of Americans view the Supreme Court favorably, close to last year’s historic low. The judicial branch may have consolidated additional power over the past few years, but these attempts have not gone unnoticed by the public. With the Supreme Court seemingly disregarding stare decisis, the public no longer has a frame of reference for major legal patterns going forward. If Roe v. Wade was so easily overturned, Obergefell v. Hodges (2015), Griswold v. Connecticut (1965), and numerous other cases that protect millions of Americans’ civil liberties may be at risk. The increase in political polarization, decline in the perceived legitimacy of the Supreme Court, and overall decrease in political stability in today’s politics all go hand in hand. The division so evident in American politics today can be seen even in the Supreme Court, an institution intended to remain independent of any political tumult.
In summary, the relationship between the Supreme Court’s departure from stare decisis and a nationwide increase in legal and political instability is complex, and certainly needs to be addressed. Perhaps, some or all of the proposed Supreme Court reforms can aid in restoring the American people’s perception of the Supreme Court’s legitimacy. The careful system of checks and balances that governs the United States has been thrown off kilter, and many have consequently lost confidence in the judicial branch. As one considers the fate of American democracy in regards to the integrity of the election process and the office of the president, it is critical to bear in mind that a fair and independent judiciary is a necessary component of democracy. If in the formation of the United States, democracy was put on trial and written into law, that’s certainly a precedent that should not be overturned.
Aditi Bhattacharjya is a first-year studying Economics and International and Public Affairs at Brown University. She is a staff writer for the Brown Undergraduate Law Review and can be reached at aditi_bhattacharjya@brown.edu.
Cat Gao is a second-year student studying Philosophy and Literary Arts at Brown University. She is a blog editor for the Brown Undergraduate Law Review and can be reached at cat_gao@brown.edu.