The question of when and how the Supreme Court can overturn its own precedent has received a lot of attention recently, because right now, the Court is poised to overturn a big one. Based on oral arguments in Dobbs v. Jackson Women’s Health Organization, the case concerning Mississippi’s proposed ban on abortions after 15 weeks of gestation, it seems likely that the Court will either outright overturn Roe v. Wade and Planned Parenthood v. Casey, the two cases that currently protect reproductive rights, or significantly change the standards outlined in those cases to the point of rendering them meaningless.
Many people—mainly non-lawyers who support some access to abortion care and are unaware of the generation-long Republican attempt to return pregnant people to the status of incubators with mouthparts—seem to be under the impression that Roe is “settled law,” and that that status somehow protects abortion rights from the conservative legal movement’s machinations. Indeed, some people—including people who have been elected by Democrats to serve in the federal government—have even referred to Roe as superprecedent, as if that word means a goddamn thing to any Supreme Court justice handcrafted by the Federalist Society to take away women’s rights.
There is no such thing as a superprecedent. There is no such thing as a precedent that cannot be overturned. But I don’t blame non-lawyers from thinking that there might be, because the lawyers, judges, and the legal academy writ large spend an awful lot of time gazing into their own navels and selling America on the snake oil that is stare decisis.
Put simply, stare decisis is the principle that current controversies should be decided based on past precedent. If the Court rules on Monday that you don’t have a constitutional right to a glass of water, it should rule that you have no right to a glass of water on Friday, too. Moreover, if a litigant shows up and demands a glass of milk, the Court, in principle, should try to determine the extent to which a glass of milk is like a glass of water, instead of making up an entirely different rule for milk.
Stare decisis is a simple concept, but there’s an obvious problem with the doctrine: What if the older court was wrong? Look, the Supreme Court once told my people, including my literal mother who was born in 1950 in Mississippi, that we had no right to get a drink of water at a “whites only” water fountain. A legal principle that instructs me to defer to the opinions of courts filled with slavers and white supremacists is morally bankrupt on its face. I should not have to distinguish my claims for equal rights from those made in previous courts that refused to recognize my humanity.
My objection to stare decisis is an objection that I voiced as a first-year law student, and that has probably been voiced in every first-year law school course in the history of law schools. Every law professor—every one I’ve ever talked to—has some version of the same answer: Basically, judges and justices are allowed to overrule past cases, but only when factual circumstances have changed so momentously that the old rule becomes unworkable. Courts are not supposed to overrule cases because they think older courts were wrong. Courts are supposed to overrule cases because they think they know something the older court didn’t and couldn’t have known.
I know it sounds like I’m just spewing fancy legal semantics, but I’m telling you what these people will say with a straight face if you press them on the point. If you don’t believe me, go back and actually read Brown v. Board of Education, the case that overturned the “separate but equal” principle from Plessy v. Ferguson that blessed decades of blatant race discrimination across the Jim Crow South. Chief Justice Earl Warren, writing for an unanimous Court, doesn’t say “The justices in Plessy were some racist assholes. The end.” He doesn’t say “This Court has been the seat of great evil, and we’re sorry, but that ends today.” Instead, Warren’s opinion is basically, “OMG. Turns out separate is inherently unequal. It makes Black people feel bad about themselves. Who knew? We live in an age of discovery!” The Court overturned 75 years of Jim Crow oppression as if the basic humanity of Black people was something it had only recently uncovered.
Now, nobody should believe this is how judges and justices actually think. Nobody should be so addled as to think Earl Warren was sitting around one day reading an issue of Ebony when it dawned on him that there was more information about the ill effects of educational segregation than was available to his 19th-century predecessors. No. Judges adhere to stare decisis until they decide to break with precedent, and then make up some irrevocably changed circumstances or claim to have discovered new information in order to justify their decision. There are no actual rules for when a Court can overcome stare decisis. There are only justices asking people to believe they are acting for some reason other than “we want to overturn precedent and have the votes to do it.”
But leave it to alleged attempted rapist Brett Kavanaugh to oafishly channel Eric Cartman’s “I do what I want” philosophy and put the intellectual hollowness of the conservative movement on display. During oral arguments in Dobbs, Kavanaugh listed a number of cases in which the Supreme Court overturned its precedent: Brown (which overturned segregation), Loving v. Virginia (which overturned bans on interracial marriage), and Lawrence v. Texas (which overturned anti-sodomy laws). Without these decisions, he opined, “the country would be a different place.” The clear implication is that overturning “bad” decisions is a “good” thing for the Court to do.
I’m not required to believe that judges who were given their jobs in order to take away reproductive rights have “new” information about how babies are made that was unavailable 30 or 50 years ago.
But his statement is so banal that it could be said about nearly anything. Everybody agrees that the Court does, and should, overrule precedents from time to time. The million-baseball tickets question that Kavanaugh’s philosophical musings elided is: Which ones, exactly? Again, the Court is bound by no statutory rule or constitutional principle for when it can overrule its own precedents. The Supreme Court literally makes up the rules for what the Supreme Court can do. If Kavanaugh wants to make an argument that the Court should not be bound by stare decisis, it’s incumbent upon him to tell us what he’d put in its place.
Kavanugh, for his part, has previously suggested that Roe shouldn’t be touched at all. He said it was “settled” law in his 2018 Senate confirmation hearings, and called the right it protects “precedent on a precedent.” His patron saint, Maine Senator Susan Collins, gave her own public assurances about Kavanaugh’s respect for precedent, citing his closed-door statements to her that Roe is “settled law” as part of her willingness to vote for his confirmation. Three years later, his argument in Dobbs, which boils down to a defense of the Court overturning precedent every time it feels like the country should be a “different place,” is precisely the argument Kavanaugh and Collins promised he’d never make.
Not that Kavanaugh’s lies about his own philosophy should surprise anybody who has been paying a modicum of attention. The conservative justices were put on the court for the express purpose of overturning Roe, according to the very president who appointed them. I’m not required to believe that judges who were given their jobs in order to take away reproductive rights have “new” information about how babies are made that was unavailable 30 or 50 years ago.
Stare decisis never protected abortion rights. The late Justice Ruth Bader Ginsburg, a pioneer of sex equality, did. Justice Anthony Kennedy, a conservative who voted to save Roe when it appeared doomed in 1991, did. Merrick Garland, whom President Barack Obama nominated to replace Justice Antonin Scalia in 2016, would have. Allowing Mitch McConnell to turn Garland, Kennedy, and Ginsburg into Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett is why reproductive rights are now under threat, no matter how “settled” anyone assures Susan Collins that Roe is. It was never about judicial philosophy, and was always simply about judicial power. Unless liberals take the courts more seriously, conservatives will be free to overturn whatever precedents they don’t like for the next generation.