In the recent U.S. Supreme Court decision of Ramos v. Louisiana [1] (decided April 20, 2020), Justice Kavanaugh looks like he’s putting a target squarely on the back of Roe v Wade. The decision focuses on the legal doctrine of stare decisis, a doctrine with a troubled legal history and a fascinating concept for those willing to view it through the lens of cognitive science (as I recently did in this article for the Bar Association of Metropolitan St. Loui [2]s). The Kavanaugh Concurrence is getting lots of attention [3] for his treatment of stare decisis.
It goes with out saying that the official Roman Catholic position is that abortion is a form of murder [4]. This view is embraced even by the current leader of the Catholic Church, Pop Francis. See here [5]. Kavanaugh is one of five men on the Supreme Court who are practicing Roman Catholics (Kavanaugh, Roberts, Thomas and Alito) or who were (in the case of Justice Neil Gorsuch) were raised Roman Catholic. Justice Sotomayor is also Roman Catholic.
Here are a couple excerpts from the Kavanaugh concurrence:
The doctrine of stare decisis does not mean, of course, that the Court should never overrule erroneous precedents. All Justices now on this Court agree that it is sometimes appropriate for the Court to overrule erroneous decisions. Indeed, in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents.
Historically, moreover, some of the Court’s most notable and consequential decisions have entailed overruling precedent. See, e.g., Obergefell v. Hodges, 576 U. S. 644 (2015); Citizens United v. Federal Election Comm’n, 558 U. S. 310 (2010); Montejo v. Louisiana, 556 U. S. 778 (2009); Crawford v. Washington, 541 U. S. 36 (2004); Lawrence v. Texas, 539 U. S. 558 (2003); Ring v. Arizona, 536 U. S. 584 (2002); Agostini v. Felton, 521 U. S. 203 (1997); Seminole Tribe of Fla. v. Florida, 517 U. S. 44 (1996); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992);1 Payne v. Tennessee, 501 U. S. 808 (1991); Batson v. Kentucky, 476 U. S. 79 (1986); Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985); Illinois v. Gates, 462 U. S. 213 (1983); United States v. Scott, 437 U. S. 82 (1978); Craig v. Boren, 429 U. S. 190 (1976); Taylor v. Louisiana, 419 U. S. 522 (1975); Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam); Katz v. United States, 389 U. S. 347 (1967); Miranda v. Arizona, 384 U. S. 436 (1966); Malloy v. Hogan, 378 U. S. 1 (1964); Wesberry v. Sanders, 376 U. S. 1 (1964); Gideon v. Wainwright, 372 U. S. 335 (1963); Baker v. Carr, 369 U. S. 186 (1962); Mapp v. Ohio, 367 U. S. 643 (1961); Brown v. Board of Education, 347 U. S. 483 (1954); Smith v. Allwright, 321 U. S. 649 (1944); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943); United States v. Darby, 312 U. S. 100 (1941); Erie R. Co. v. Tompkins, 304 U. S. 64 (1938); West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937).
The lengthy and extraordinary list of landmark cases that overruled precedent includes the single most important and greatest decision in this Court’s history, Brown v. Board of Education, which repudiated the separate but equal doctrine of Plessy v. Ferguson, 163 U. S. 537 (1896).
As those many examples demonstrate, the doctrine of stare decisis does not dictate, and no one seriously maintains, that the Court should never overrule erroneous precedent. As the Court has often stated and repeats today, stare decisis is not an “inexorable command.” E.g., ante, at 20.”
As those many examples demonstrate, the doctrine of stare decisis does not dictate, and no one seriously maintains, that the Court should never overrule erroneous precedent. As the Court has often stated and repeats today, stare decisis is not an “inexorable command.” E.g., ante, at 20.
In statutory cases, stare decisis is comparatively strict, as history shows and the Court has often stated. That is because Congress and the President can alter a statutory precedent by enacting new legislation. . . . In constitutional cases, by contrast, the Court has repeatedly said—and says again today—that the doctrine of stare decisis is not as “inflexible.”
“See also Kavanaugh’s footnote 1 on Casey:
In Casey, the Court reaffirmed what it described as the “central holding” of Roe v. Wade, 410 U. S. 113 (1973), the Court expressly rejected Roe’s trimester framework, and the Court expressly overruled two other important abortion precedents, Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986). See Casey, 505 U. S., at 861; id., at 870, 873 (plurality opinion).
Justice Kavanaugh then proceded to offer a mushy factors test that would justify the U.S. Supreme Court in overruling Constitutional precedent. Here are a few of those excerpts:
As the Court has exercised the “judicial Power” over time, the Court has identified various stare decisis factors. In articulating and applying those factors, the Court has, to borrow James Madison’s words, sought to liquidate and ascertain the meaning of the Article III “judicial Power” with respect to precedent. The Federalist No. 37, at 236. The stare decisis factors identified by the Court in its past
cases include:
the quality of the precedent’s reasoning;
the precedent’s consistency and coherence with previous or subsequent decisions;
changed law since the prior decision;
changed facts since the prior decision;
the workability of the precedent;
the reliance interests of those who have relied on the
precedent; and
the age of the precedent.
But the Court has articulated and applied those various individual factors without establishing any consistent methodology or roadmap for how to analyze all of the factors taken together. And in my view, that muddle poses a problem for the rule of law and for this Court, as the Court attempts to apply stare decisis principles in a neutral and consistent manner.
As I read the Court’s cases on precedent, those varied and somewhat elastic stare decisis factors fold into three broad considerations that, in my view, can help guide the inquiry and help determine what constitutes a “special justification” or “strong grounds” to overrule a prior constitutional decision. First, is the prior decision not just wrong, but grievously or egregiously wrong? A garden-variety error or disagreement does not suffice to overrule. In the view of the Court that is considering whether to overrule, the precedent must be egregiously wrong as a matter of law in order for the Court to overrule it. In conducting that inquiry, the Court may examine the quality of the precedent’s reasoning, consistency and coherence with other decisions, changed law, changed facts, and workability, among other factors. A case may be egregiously wrong when decided, see, e.g., Korematsu v. United States, 323 U. S. 214 (1944); Plessy v. Ferguson, 163 U. S. 537 (1896), or may be unmasked as egregiously wrong based on later legal or factual understandings or developments, see, e.g., Nevada v. Hall, 440 U. S. 410 (1979), or both, ibid.
Second, has the prior decision caused significant negative jurisprudential or real-world consequences? In conducting that inquiry, the Court may consider jurisprudential consequences (some of which are also relevant to the first inquiry), such as workability, as well as consistency and coherence with other decisions, among other factors.
Importantly, the Court may also scrutinize the precedent’s real-world effects on the citizenry, not just its effects on the law and the legal system. See, e.g., Brown v. Board of Education, 347 U. S., at 494–495; Barnette, 319 U. S., at 630–642; see also Payne, 501 U. S., at 825–827.
Third, would overruling the prior decision unduly upset reliance interests? This consideration focuses on the legitimate expectations of those who have reasonably relied on the precedent. In conducting that inquiry, the Court may examine a variety of reliance interests and the age of the precedent, among other factors.
In short, the first consideration requires inquiry into how wrong the precedent is as a matter of law. The second and third considerations together demand, in Justice Jackson’s words, a “sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other.” Jackson, 30 A. B. A. J., at 334.
Those three considerations together provide a structured
methodology and roadmap for determining whether to overrule an erroneous constitutional precedent. The three considerations correspond to the Court’s historical practice and encompass the various individual factors that the Court has applied over the years as part of the stare decisis calculus. And they are consistent with the Founding understanding and, for example, Blackstone’s shorthand description that overruling is warranted when (and only when) a precedent is “manifestly absurd or unjust.” 1 Blackstone, Commentaries on the Laws of England, at 70.
Taken together, those three considerations set a high (but not insurmountable) bar for overruling a precedent, and they therefore limit the number of overrulings and maintain stability in the law.4 Those three considerations also constrain judicial discretion in deciding when to overrule an erroneous precedent. To be sure, applying those considerations is not a purely mechanical exercise, and I do not claim otherwise. I suggest only that those three considerations may better structure how to consider the many traditional stare decisis factors.
It is inevitable that judges of good faith applying the stare decisis considerations will sometimes disagree about when to overrule an erroneous constitutional precedent, as the Court does in this case. To begin with, judges may disagree about whether a prior decision is wrong in the first place— and importantly, that disagreement is sometimes the real dispute when judges joust over stare decisis. But even when judges agree that a prior decision is wrong, they may disagree about whether the decision is so egregiously wrong as to justify an overruling. Judges may likewise disagree about the severity of the jurisprudential or real-world consequences caused by the erroneous decision and, therefore, whether the decision is worth overruling. In that regard, some judges may think that the negative consequences can be addressed by narrowing the precedent (or just living with it) rather than outright overruling it. Judges may also disagree about how to measure the relevant reliance interests that might be affected by an overruling. And on top of all of that, judges may also disagree about how to weigh and balance all of those competing considerations in a given
case.
Footnote 4: Another important factor that limits the number of overrulings is that the Court typically does not overrule a precedent unless a party requests overruling, or at least unless the Court receives briefing and argument on the stare decisis question.
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My paper on stare decisis is “The Exaggerated Importance of Stare Decisis [6],” St. Louis Bar Journal (2019).
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