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When Courts Change Their Minds

photograph of law books in a library

In late June the Supreme Court of the United States released a bevy of opinions. Most prominent perhaps is the 5-4 decision in Dobbs v. Jackson Women’s Health in which the court overturned the famous 1973 Roe v. Wade decision. The court also, in Kennedy v. Bremerton, has done away with the long used “Lemon test” concerning the separation of church and state.

Beyond questions of whether the decisions are ethically correct, these rulings are notable because they go against established precedent. In legal systems like the United States, courts generally adhere to the doctrine of stare decisis or “to stand by things decided.” The Supreme Court has previously ruled – in both Roe v. Wade and Planned Parenthood v. Casey – that there exists an implicit constitutional right to abortion. Changing its mind is then unusual, although hardly unique to the current court. The 1954 Brown v. Board of Education is famously seen to have overturned the “separate but equal” doctrine the court had previously held in Plessy v. Ferguson. (Although, technically, the Brown ruling is more narrow, only contending that separate but equal does not apply in public schools.) Evan Butts has previously discussed some of the practicalities of overturning precedent for The Prindle Post.

Recent additions to the Supreme Court, such as Justices Brett Kavanaugh and Neil Gorsuch, are being criticized for implying (misleadingly) they would stick with precedent on rulings like Roe v. Wade.

But why should the Court be bound by past opinion at all? Imagine a scientist claiming that we should stick with Newtonian physics and not jump ship to general relativity because Newtonian physics is an established precedent – even though they agree Newtonianism is incorrect.

This would be preposterous. And yet stare decisis is often understood to imply such a burden, that, as Justice Brandeis wrote in 1932 “in most matters it is more important that the applicable rule of law be settled than it be settled right.”

Following precedent in cases where the rightness of the initial ruling is not in question is straightforward – this is nothing more than a demand for courts to interpret the law correctly. Precedent as such is superfluous here, as consistency is being ensured purely by the court deciding correctly in each case. The doctrine of stare decisis only achieves importance when it comes to ambiguous or even wrongly decided cases, and whether they should nonetheless maintain some hold over future judicial decisions.

As Justice Brandeis suggested, defenders of stare decisis justify it by pointing to its role in settling matters of law – that is, making law fair, consistent, and predictable, as opposed to mercurial.

The claim is that absent this general principle of stability, the law could change drastically with the simple turnover of judges. More practically, precedent also provides courts the legal tools to decide cases efficiently.

The value of having settled law is especially clear in cases like Obergefell v. Hodges (2015) which enshrined a constitutional right to the recognition of same-sex marriages. Agree or disagree ethically, it is clear same-sex couples can and have built their lives differently knowing that they have a right to marriage recognition. Likewise, agree or disagree ethically with abortion, confidence they have control of whether to go through with a pregnancy affects how women live their lives. These are referred to as reliance interests.

Notably, these defenses of precedent contain the seeds of their own limitation as ultimately the doctrine of stare decisis is justified on the basis of being a social good. Cases of pernicious and dubiously-decided law are weighed against the value of the law being settled. Justice Brandeis made a further point, distinguishing the weight of precedent in statutory law (made by the legislature) which can easily be overturned by later legislation, from precedent in matters of constitutional interpretation. According to Brandeis, precedent matters less when there are fewer forms of redress.

Overall, few if any defend an imperative to follow precedent for all cases – at least when it comes to rulings being made by a court of equal or lesser authority. Precedents can and do get overturned. That lower courts should follow upper courts can provide an alternative defense of following precedent even in wrongly decided cases (sometimes called vertical as opposed to horizontal precedent).

In the 2018 5-4 decision Janus v. AFSCME, the majority opinion authored by Justice Samuel Alito indicated that the current Supreme Court is especially open to revisiting previously decided matters when it believes they were wrongly decided. Justice Clarence Thomas has claimed, most recently in his concurring opinion in Dobbs v. Jackson Women’s Health Organization, that the Court should correct “demonstrably erroneous” rulings.

Expanding Thomas’s point, one could argue that the Supreme Court should have no special obligation to consider the social value of precedent and settled law at all, and simply always make the legally correct decision.

The chief challenge with this line of argument is on what basis should a case be considered “demonstrably erroneous”? Certainly, the current Supreme Court does not have consensus that the legal reasoning of Roe v. Wade and Planned Parenthood v. Casey was wrong. (Brown v. Board of Education incidentally was a unanimous decision.) Absent strong evidence, e.g., a unified court, that a decision was made wrongly on legal grounds, the “demonstrably erroneous” standard of overturning precedent can collapse into “I think this decision was decided wrongly, and therefore I am justified in overruling it.” This reintroduces the dependence on the idiosyncrasies of specific justices that a principle like stare decisis is supposed to help limit.

Law is complex and so is legal interpretation – we should expect obviously incorrect decisions to be the exception rather than the rule. In light of this, one approach to stare decisis would be to acknowledge precedent should not be binding, but that the force of its motivating reasons such as consistency and stability of law apply especially strongly in cases where legal correctness or the proper interpretive framework is under dispute. Nonetheless, the current Supreme Court has indicated a more revisionary stance. It will become clear over the next few years how this plays out with the broader legal understanding of stare decisis in the United States.

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Constitutional Interpretation in the Roe Reversal

photograph of Authority of Law statue facing out from Supreme Court building

On May 2, Politico published a leaked draft opinion of the Supreme Court of the United States in the case Dobbs v. Jackson Women’s Health Organization. The case concerns the constitutionality of Mississippi’s Gestational Age Act, which would prohibit abortions in the state after fifteen weeks. The appearance in the press of a leaked draft opinion of the Court is a highly unusual event unto itself, the exact circumstances of which are not yet known by the public but are currently the subject of investigation and speculation. The draft opinion, authored by Justice Samuel Alito, would not merely uphold Mississippi’s restrictive abortion law. It would overturn Roe v. Wade and Planned Parenthood v. Casey, and thereby rescind the constitutional protection for the right to privacy with respect to abortion that has been in place for nearly half a century.

Much of the public discussion about legal challenges to the right to privacy with respect to abortion in the press and in the confirmation hearings of Supreme Court nominees has, rightly or wrongly, focused on the doctrine of stare decisis. From this perspective, since the Court had already recognized and reaffirmed the right to privacy with respect to abortion, the key question was whether the Court would abandon that precedent and under what conditions the Court had a legitimate basis to do so. These issues also came up in oral argument in Dobbs. In electing to overturn precedent, the leaked draft opinion provides the following rationale: Roe and Casey were “egregiously wrong” decisions that “must be overruled” because the recognition of the constitutional protection of the right to privacy with respect to abortion was an “abuse of judicial authority” wherein “the Court usurped the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.”Alito concludes that “the authority to regulate abortion must be returned to the people and their elected representatives.”

It is first worth noting what the draft opinion does not say. It does not address the issue of whether, as a matter of basic justice or as a matter of political legitimacy, the right to privacy with respect to abortion requires constitutional protection.

This is because, notwithstanding the abstract moral provisions of the constitution, the theory of constitutional interpretation espoused in the draft opinion presupposes that these are mostly irrelevant considerations with respect to determining whether an unenumerated right is a candidate for constitutional protection. While it is presumably the case that Alito thinks abortion is some kind of grievous moral wrong, the draft opinion does nothing to support that conclusion other than to indicate that some people hold that opinion. Its primary aim is to demonstrate that the right to privacy with respect to abortion does not satisfy two key criteria it claims are necessary for an unenumerated right to require constitutional protection: that the right is “deeply rooted in [our] history and tradition” and compatible with a scheme of “ordered liberty.” According to Alito, the right to privacy with respect to abortion does not satisfy these criteria, and therefore the authority to regulate abortion must be left to the states.

It is worth contemplating just what the supposed restoration of the authority of the people to regulate abortion would constitute. This would grant states, in principle, broad police powers with respect to abortion. The people of the states could, of course, limit these powers by entrenching statutory or constitutional rights against their exercise, but they could also reserve such powers to the legislature. Some of these powers are the obvious ones that the opponents of safe and legal abortion desire: the authority to severely restrict or outright ban abortion within a state, including the authority to impose criminal penalties on women and their physicians if they are so inclined.

But it would also entail, as the late legal philosopher Ronald Dworkin pointed out, the authority to compel abortion so long as doing so promotes a legitimate state interest. This point was reiterated in Casey, which notes that but for the right protected by Roe, “the State might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example.” A draft opinion which, if it does become the decision of the Court, would authorize state policy requiring compulsory abortion or would permit the institution of a scheme of licensure for the privilege of bearing children, including the imposition of fines or penalties for failure to make use of abortion services in the absence of such license is of great concern.

I mention this not because I think this is a likely prospect — I take no position on that question — but because it suggests that the draft opinion is prima facie defective.

And while jurists are generally less willing than philosophers to contemplate what they presume to be unlikely or fanciful consequences, or “hypotheticals,” it does not require any imagination to realize that such policies are not unheard of. These were effectively part of China’s One Child Policy, for instance. Once this dimension of the right to privacy with respect to abortion is acknowledged, it becomes clear that if the Court, in overturning Roe and Casey, primarily looks to a litany of 19th Century statutes restricting or prohibiting abortion as a basis for such a determination, it has not taken its analysis of “history and tradition” very seriously.

I have postulated that the same constitutional right to privacy that protects a woman’s right to choose whether to have an abortion also protects a woman’s right to not be compelled to have an abortion. It might be claimed that this point is irrelevant because it is possible to have one without the other: it is possible to jettison the right to choose and retain the right not to be compelled. It is certainly possible to conceive of a legal regime that is barred from compelling a woman to have an abortion without that woman having an individual right against such compulsion. For instance, if the state restricts itself from exercising that prerogative, or because it would violate the rights of someone else, e.g., if an embryo or fetus is considered to be a rights-bearing person, or if a woman’s body is considered the property of another person, and so on.

However, I would suggest that if a woman has an individual right not to be compelled to have an abortion, or, in other words, if such an invasion of her body by the state is an injury to her, as it plainly is, then, ex hypothesi, her right against such compulsion, whether described in terms of liberty, autonomy, privacy, or bodily integrity, also entails that she has the right to choose to have an abortion.

If this is the case, it follows that if the right to not be compelled to have an abortion meets the criteria for constitutional protection, then the Court is making a grave error in rescinding the right to privacy with respect to abortion.

The draft opinion is also concerning due to the precedent it sets for privacy rights in general. In a recent essay, the constitutional scholar Akhil Amar attempts to assuage these concerns. He aims to defend Alito’s claim that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” According to Amar, overturning Roe and Casey would not imperil other privacy rights because, first, the public statements of sitting Justices indicate that they are not inclined to rescind other privacy rights, (e.g., the right to privacy with respect to contraception and the right privacy with respect to interracial marriage), and, second, because the recent legislative agendas of the states suggests that there is little to no public support for doing so.

The basic idea is that, unlike other privacy rights, the right to privacy with respect to abortion remains controversial, as evidenced by the persistence of legal challenges by various states. Therefore, other rights are unlikely targets for rescindment.

But this point is cold comfort for those who take the right to privacy with respect to abortion to have the same foundation as the other privacy rights. Perhaps the current composition of the Court can make peace with the apparent interpretive inconsistency of recognizing some privacy rights and not others, of declaring some privacy rights fundamental rights and treating the recognition of others as tantamount to judicial usurpation. But that does not prevent a future Court from using the reasoning in this draft opinion, if it does become the decision of the Court, as precedent for such judicial misadventure. (Of course, no precedent can prevent a majority of the Court that is willing to dispense with precedent altogether from imposing its interpretation of the Constitution on the nation.)

Presumably the reason Amar does not find the draft opinion to be concerning is because he does not see any such inconsistency. He agrees with Alito’s assessment that “abortion is fundamentally different” from other privacy rights, a point on which he is cited as an authority in the draft opinion. One reason, put forth by Alito and Amar, for the supposed distinction between the right to privacy with respect to abortion and the other privacy rights is the presence of an interest in protecting “potential life.”

The implication is that the right to privacy with respect to abortion entails unique conflicts that other privacy rights do not. But this is not plausible.

First, it is necessary to be clear about what the nature of the conflict is. The legitimate state interest, acknowledged in Roe and Casey, of protecting potential life, presents a conflict between individual liberty and public policy. When this is recognized, there is plainly no relevant difference between the right to privacy with respect to abortion and other privacy rights. All of these may be in conflict with various kinds of social policy, for instance, in regulating the “morals” of a community, as anti-miscegenation laws certainly purported to do.

The other reason, adduced by Alito and mentioned by Amar, states that the right to abortion with respect to privacy is distinct because abortion “destroys an ‘unborn human being.’” But the Court has not dared to claim, even in this draft opinion, as it could not do without venturing into a constitutional quagmire, that an unborn human being is a constitutionally rights-bearing person. So it is not clear what the point of this claim is supposed to be or how it factors into constitutional interpretation.

It remains to be seen whether the official Dobbs decision will differ in any significant way from the draft opinion. What is clear is that the Court is on the verge of rescinding the right to privacy with respect to abortion.

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Ponderous Chains; or, How the Supreme Court Escapes Precedent

photograph of statue on the steps to the US Supreme Court

Like Jacob Marley, the Supreme Court of the United States wears the chains it formed in life; unlike Jacob Marley, the Supreme Court is not always resigned to be strictly bound by these chains. This is a simile. It is also in the form of a fact-to-fact comparison law students are taught to write in their first year. Such legal similes are a devious device by which the Court slips its ponderous chains — but only in its subtler moments. A court will avoid following a rule while leaving it in place by arguing that it doesn’t apply in a particular case — by “distinguishing” a past binding case from one under consideration. At other times the Court casts-off one of its coils altogether like Dorothy Parker’s apocryphal book. It is this less subtle maneuver that commentators worry about when the make-up of the court radically changes, as it has over the last four years. Now with President Donald Trump poised to name a third justice to the Court, after Neil Gorsuch (replacing Antonin Scalia) and Brett Kavaunagh (replacing Anthony Kennedy), the Court is changing more at one time than it has since the presidency of Franklin D. Roosevelt.

The Supreme Court of the United States (“SCOTUS”) has nine justices. That number is not fixed anywhere as a matter of law, but is how many seats there have been since 1869. That makes 5 to 4 four the ratio for majority opinion. Why does that matter? All courts in the US operate on the basis of a principle called stare decisis, which is Latin for “stand by what is decided.” This principle creates a system of judicial precedents that oblige “lower” courts to rule in a manner consistent with “higher” courts, and creates a strong presumption that a given court will decide in a manner with its own past decisions. For example, decisions of the Supreme Court of Pennsylvania bind the intermediate appeal courts of that state, as well as all of the state trial courts. The decisions of the 3rd Circuit Court of Appeals bind the Federal District Courts of Pennsylvania, New Jersey, Delaware, and the Virgin Islands. And of course the decisions of the SCOTUS bind all other courts: it is the “highest court in the land,” and therefore all other courts are lower with respect to it.

A majority opinion is required for a decision to be binding. Or, more precisely, a single rationale (implicitly) approved by at least five justices is required to bind lower courts. This rule, the “Marks Rule,” was promulgated in Marks v. United States, where the court was primarily concerned with deciding due process issues about the retroactive effect of binding decisions made while other cases are in the process of adjudication. If there is no common rule or rationale embodied by the collective opinions of the justices, then their opinions are merely persuasive rather than binding. When the SCOTUS does issue a majority opinion, in addition to binding lower courts, it also creates a precedent that it will generally hold itself to. Reading a SCOTUS opinion, you will see the justices often refer to past Court decisions as reasons for their decision — sometimes with open distaste. For example, in Grable & Sons Metal Products v. Darue Engineering & Manufacturing, Justice Clarence Thomas invited an opportunity to overrule Court precedent concerning federal court jurisdiction in his opinion concurring with an unanimous court. That is, in the same breath he indicated both “this is the rule” and “I would like to obliterate this rule.” Recently, Thomas also indicated that he would entertain cases aimed at overturning the qualified immunity rule.

Why would a Justice or the Court invite the opportunity to hear cases in order to overturn precedent rather than simply doing it? No court can just issue any decision on any matter it wants to apropos of nothing. There are complicated matters concerning which court (“venue“) can hear which claims (“subject matter jurisdiction“) over which people (“personal jurisdiction“), all of which haunt the sleep of law students. Further, courts usually cannot decide any matters that are not explicitly raised by parties to a legal proceeding: they cannot issue rulings on their own initiative, or “sua sponte.” Finally, the supreme courts of the various states and the United States itself are not generally obliged to hear any particular case. Instead these courts exercise their discretion, guided by their own procedural rules, when determining what cases to hear.

Now the anxiety of liberal Court-watchers becomes clear. With Amy Coney Barrett’s confirmation to the seat made empty by Justice Ruth Bader Ginsberg’s death, the balance of the Court would shift to a clear conservative majority. The conservative bench would comprise Justices Barrett, Kavanaugh, Gorsuch, Alito, Thomas, and Chief Justice Roberts, while the liberal bench would have only Justices Sotamayor, Kagan, and Breyer. In light of this composition, people eager to overturn decisions in disfavor with conservatives (for example, Roe v. Wade) would attempt to obtain review for as many cases that could present an opportunity for the Court to overturn past precedent. Conservative members of the Court might even encourage that in their opinions on related matters. There would then be a new precedent, binding on all lower courts, until a time when a later Court with a different composition might decide to change its mind again. However, as Justices serve until they die, retire, or are removed pursuant to impeachment, it takes a long time for the composition of the court to evolve “naturally.”

In light of the Republicans blocking Obama nominee Merrick Garland during an presidential election year, and their subsequent rush to appoint Amy Barrett in the last few weeks prior to a presidential election, many urge an “artificial” alteration of the Court’s composition. The alternative, increasing the number of seats on the court (i.e., “court packing“), was openly discussed by Democratic presidential candidates Pete Buttgieg, Amy Klobuchar, Cory Booker, and current Democratic Vice-Presidential candidate Kamala Harris. However, that option requires Congressional cooperation and popular support and is likely to create pushback. In all likelihood, Democrats will have to wait a long time to appoint a new Justice to the court, even if Joe Biden wins the 2020 election for President of the United States.

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The Peace Cross and Separation of Church and State

In 1925, a 40-foot stone cross was erected in Bladensburg Maryland. The cross was built by the American Legion and is known as the Bladensburg Cross or, more commonly, the Peace Cross. It was built as a monument to honor the 49 men from Prince George’s County who fought and died in World War I. The design of the monument is a simple white cross, which was a fairly common style in cemeteries at the time of its construction (though some argue that the cross was a central symbol of the war). Construction initially began on public land, but when the project ran out of funding, the American Legion took over and completed construction in a private capacity. In 1961, the state obtained the land through the state’s exercise of its eminent domain power for the purposes of constructing a highway. The memorial now stands on a highway median on state land and is maintained by Maryland-National Capital Park and Planning Commission. In 1985, the commission spent $100,000 in taxpayer money to renovate the monument. At that time, the state conducted a ceremony during which the monument was rededicated to veterans of all wars. In 2008, the legislature set an additional $100,000 for renovation of the deteriorating monument, but the general consensus is that at this stage the monument is beyond repair.

A plaque on the monument expresses commitment to belief in one God.  It reads:

WE, THE CITIZENS OF MARYLAND, TRUSTING IN
GOD, THE SUPREME RULER OF THE UNIVERSE,
PLEDGE FAITH IN OUR BROTHERS WHO GAVE
THEIR ALL IN THE WORLD WAR TO MAKE THE
WORLD SAFE FOR DEMOCRACY. THEIR MORTAL
BODIES HAVE TURNED TO DUST, BUT THEIR SPIRIT
LIVES TO GUIDE US THROUGH LIFE IN THE WAY OF
GODLINESS, JUSTICE, AND LIBERTY.
WITH OUR MOTTO, “ONE GOD, ONE COUNTRY AND
ONE FLAG,” WE CONTRIBUTE TO THIS MEMORIAL
CROSS COMMEMORATING THE MEMORY OF THOSE
WHO HAVE NOT DIED IN VAIN.

The American Humanist Association, among others, filed suit in District Court, alleging that the memorial violates the Establishment Clause of the United States Constitution. The Establishment Clause appears in the First Amendment and prohibits the government from making any law “respecting an establishment of religion.” The American Legion stepped in to defend the monument in court proceedings. The District Court offered summary judgment in favor of the American Legion, concluding that the memorial did not violate the Establishment Clause. On appeal in the Fourth Circuit, that decision was reversed.

Establishment Clause cases are often decided according to familiar precedent. That standard is the Lemon Test, established in the 1971 case Lemon v. Kurtzman. This test has three prongs. First, the statute must have a secular legislative purpose. Second, its principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not foster an excessive government entanglement with religion. The Fourth Circuit court concluded that The Bladensburg Cross violated prongs two and three of this test.  

The Supreme Court reversed the decision of the Fourth Circuit.  The court declined to use the Lemon Test. Instead, in his opinion, Justice Alito focused on facts about the historical background of the monument, identifying four main reasons that assessing historical monuments is different from assessing monuments that are newly constructed.  First, he claimed that, when monuments are old enough, it is difficult to know the precise intentions behind their construction. Second, he claimed that symbols can take on additional meanings over time. Third, he suggested that the message of a monument may evolve over time, and finally, he said that when a monument has existed for long enough in a community and has become part of the everyday lives of those living in the community, the removal of the memorial may no longer be seen as neutral.

In her dissent, Justice Ruth Bader Ginsberg contested the idea that the cross was a symbol for anything other than Christianity.  She said from the bench, “The Latin cross is the foremost symbol of the Christian faith, embodying the ‘central theological claim of Christianity: that the Son of God died on the cross, that he rose from the dead and that his death and resurrection offer the possibility of eternal life.’ The Latin cross is not emblematic of any other faith.”

The court is somewhat bound by legal precedent, though they can and do reinterpret and even reinvent precedent as they go.  This controversy gives rise not only to legal questions, but, more fundamentally, to moral questions.

The historical features of our community have value. They provide the community with reminders that the lives they live now are made possible by the efforts and struggles of countless others who came before. They provide a sense of shared narrative, community, and even family. They honor the dignity and encourage an attitude of respect for those who have died.

On the other hand, there are many symbols of respect and honor that are not explicitly religious in nature. The claim that the use of religious symbolism by the state is not problematic because the memorial in question was built a sufficiently long time ago strikes many as nothing more than a fallacious appeal to tradition. As Justice Ginsberg points out, there is no confusion in our largely Christian culture when it comes to what a cross stands for. What’s more, the intended message is not inescapably lost to history—it’s carved right onto the monument itself. It reads, in part, “One God, one country, and one flag.” This is simply not the message that should be sent by a country committed to refrain from endorsing any particular religion. We are not a country committed to advancing the idea that there is one God and one God only.  

The fact that the memorial was rededicated to veterans from all wars is important.  The state continues to provide funding for a memorial that is dedicated to all veterans, but that, in design, demonstrates respect only to the Christian veterans of war. While Justice Alito is concerned that removing the memorial now would not be a demonstration of neutrality, it is hard to see how the state’s continued taxpayer-funded maintenance of a Christian symbol to honor all veterans of all wars is an act of religious neutrality. The monument is in bad condition, but  perhaps the $100,000 reserved to preserve it would be better spent in the construction of a new memorial with a more inclusive design in a more appropriate location.