NOTE TO READERS: This is the first of three articles on the Supreme Court’s potentially momentous hearing next week on the future of abortion rights under Roe v. Wade. This discussion focuses on when and how the Court decides whether to overrule a prior constitutional ruling. The second article, to appear in this space tomorrow, will examine the history of the right of privacy that was central to the Roe decision. The final article, appearing Wednesday, will discuss the details of the specific case to be heard by the Court December 1.
One thing seems quite clear about the constitutional reckoning that the Supreme Court will face next week as it reviews a 2018 Mississippi state law that aimed to narrow significantly a woman’s right to end a pregnancy: that law probably cannot survive unless the Court changes its mind about Roe v. Wade. And how might that happen? What leads the Court to overrule a constitutional precedent?
Roe v. Wade has been followed as a precedent since it was decided in 1973. But Mississippi’s law is widely understood to conflict directly with the Roe ruling, and that is why the state is trying to salvage its law by asking that the precedent be cast aside.
This is not the first time that the Court has been asked to overrule its 1973 decision. In the early 1990s, President George H.W. Bush’s Administration asked repeatedly for that, and the Court ultimately refused in 1992 to do so in another historic abortion decision, Planned Parenthood v. Casey. If Roe were to fall now, the Casey decision almost certainly would, too.
Background: Since 1804, the Court has acted as the final interpreter of what the Constitution as written means, but that authority has always been subject to Congress and the state legislatures undertaking to formally amend the Constitution. Short of such an amendment, the only way for a constitutional ruling to be cast aside is for the Court itself to change its mind.
Only seven times in American history has an amendment overruled a Supreme Court decision (Amendments 11, 13, 14, 16, 19, 24 and 26). By contrast, the Court has overruled its own constitutional decisions 141 times, by the Library of Congress’s count. (Probably the most famous overruling came in Brown v. Board of Education, the 1954 school desegregation decision, casting aside the “separate but equal” doctrine about race in the 1896 decision in Plessy v. Ferguson.)
The Court does not have written rules or a controlling list of reasons for overruling a constitutional decision. But it has followed several traditions as guides.
Two of the broadest propositions actually conflict with each other.
First, the Court usually is reluctant to overrule prior precedents of any kind, because of the perceived need for stability and predictability in the law. People, it reasons, need to know what the law requires of them, so it is best not to change it too often. (This is the tradition of respecting precedent – the doctrine known as stare decisis, a Latin phrase which translates as “to stand by things decided.”)
Second, the Court tends to believe that, because it is so hard to actually amend the Constitution, the Court should be more willing to cast aside its own constitutional rulings that it finds have not stood the test of time. (By contrast, if Congress does not like what the Court has done in interpreting a specific federal statute, without involving the Constitution, Congress can rewrite the law as it wishes. That counsels the Court to be more hesitant in overruling its federal statutory rulings; let the lawmakers react as they will. The Court has no authority to interpret state laws; it must take their meaning as determined by state courts. It can strike down state laws, though, if they violate the Constitution.)
How the conflict between those broad views will be sorted out in a given case cannot be predicted because neither operates as a hard-and-fast rule, and other factors come into play.
Among the other factors in the calculus, two seem to have been most influential: first, was the decision wrong when it was originally issued? second, have the people and institutions in America relied upon that precedent and expect, or need, it to remain intact?
First: The Court has stressed that it is not enough for the current members of the Court to feel that they would have decided a prior case differently had they been on the Court at the time. To overrule on that basis, it is suggested, might mean that the law would be destabilized any time the membership of the Court changed and that could put the Court’s integrity – and respect for the law — at risk.
Instead of acting based on the Justices’ personal perceptions or values, the Court has indicated that there needs to be some special reason or justification for questioning the prior ruling. That puts a focus on the reasoning used in the precedent: does that rationale hold up when re-examined in the light of changed times or circumstances? It also puts a focus on the facts underlying the precedent: have those changed enough to undermine the ruling itself?
Second: Equally important to the analysis of whether a precedent was flawed is pondering the question of reliance or dependence on that decision: have individuals, companies, institutions or governments affected by such a precedent conducted their lives or activities in keeping with the law as declared? Would it be better to adhere to the precedent, even if it is flawed, than to require a considerable segment of society to change its conduct in important of even fundamental ways?
There are a few other factors that may be at work in this calculus:
** Has the prior decision worked out as it had been expected to do, when applied to later cases, or has it proved to be unworkable?
** Was the outcome that was reached consistent with decisions reached in similar, if not identical, constitutional controversies, or was it an outlier, standing starkly alone?
** If the precedent is overruled, what is to come after that? Is it legitimate for the Court simply to let the chips fall where they may after an overruling, or does it have some obligation to provide guidance on what could come next?
Each one of these traditions or guides involves, obviously, matters of degree, but the Court over its history has felt comfortable making those judgments.
While the Library of Congress has compiled a log of 141 constitutional precedents that the Court has overruled, no one seems to have tried to compile a list of how many times the Court considered doing that, and then chose not to do so. Judicial restraint, apparently, is not as visible – or, perhaps, not as interesting — as judicial activism.
Tomorrow, the second article appearing in this series will look at the history of privacy as a right under the Constitution.