The Death of Stare Decisis?

Has the Dobbs Decision permanently upended the balance & public perception of the High Court?

By Raymond Edward Baker, Esq.

On June 24th, 2022, the United States Supreme Court opinion in Dobbs v. Jackson’s Women’s Health et. Al. was issued1, with Justice Samuel Alito writing the opinion of the Court. After nearly 60 years of existence, Roe v. Wade, Planned Parenthood v. Casey, and their progeny were overturned. The Right to Privacy was no longer guaranteed in the United States, and the issue of the right to an abortion was returned to the states. Five Justices joined Alito in his opinion, stating that even though every opinion from the Court since Roe had upheld the right to privacy as stare decisis, the Court cast that off as in their opinion because “Roe was egregiously wrong from the start.”2 Putting aside the health concerns now facing American females, including rape victims, dangerous fatal pregnancies, and even children, along with the financial, physical, and other perils that this ruling now leaves in the hands of local political leaders; we should and must look at the process of overturning over half a century of previous Supreme Court rulings and whether the killing of Roe & Casey was a political hit job by 6 Republican appointed Justices or merely our Highest Court attempting to “only do [their] Job.”3

Stare decisis, Latin for “to stand by things decided,” is the bedrock principle of legal theory in not just America, but a majority of the English-speaking world.4 Unlike in other western nations that rely on what is known as “civil law or civil code,” where courts play a lesser role, in the United Kingdom and her former colonies, common law, or laws based upon previous rulings, hold great sway. Precedent, norms, and mores hold an extremely profound effect in the United States judicial system due to this doctrine. Centuries old rulings and decisions shape differences in opinions leading certain states, such as Pennsylvania, to be stricter in protections on privacy than states they may share borders with, as the common law in Pennsylvania state judiciary will uphold and protect rights in a way that Maryland may not!

This of course is not merely a state courts issue either, as precedent, stare decisis, and common law is the basis for the majority of the current existence of the federal judiciary. In a pure strict originalist reading of Article III of the Constitution, the Supreme Court is only to oversee cases involving dignitaries, maritime law, and certain state/united states controversies.5 Such a limited judiciary makes sense, as Thomas Jefferson (our Constitution’s main author) believed that “the Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”6 This towering branch of government finds its seed and root in, of all things, stare decisis, and the precedent of judicial review that was developed whole cloth in John Marshall’s opinion in Marbury v. Madison.7 Madison set two centuries of precedent that the Court has the right to review all cases, and no one outside the most ardent of sovereign citizens would dare to suggest otherwise.

However, just because the Supreme Court makes a decision does not mean they cannot reverse course. Dobbs is not unique in the Supreme Court un-ringing its own bell. Plessy v. Ferguson,8 arguably the second biggest stain on the Court after Dredd Scott v. Sanford,9 was overturned by the Warren Court in Brown v. Board of Education10 60 years later. Lawrence v. Texas11 brought down the Court’s decision from 17 years earlier in Bowers v. Hardwick,12 ending all sodomy laws used to criminalize homosexuality. And in a more esoteric sense, the most recent example prior

to Dobbs was District of Columbia v. Heller13, where the Court offered a newer interpretation of gun control and the right to bear arms, contrasting with a century of stare decisis that had always permitted the states to limit access to guns.14

Where Dobbs is unique, as in the above cases, the Court overturned itself and spurned stare decisis in favor of granting more rights to its citizens and limiting the state’s ability to restrict access to freedom. Whether or not it aligns with one’s political views, it is undeniable. The Court in overturning itself did so to guarantee access to rights in that of self-protection, the ability to love how one sees fit, and guaranteeing each individual access to equal education regardless of race. Dobbs stands alone in that it restricts access by stripping away the right to privacy in one’s healthcare.15 Additionally, Dobbs is unique from these other instances of Supreme Court overturning its own precedent, in that the legal argument for overturning The Right to Privacy to an abortion had been heard by the Court repeatedly16, and in those cases the Court explicitly stated due to the rules of stare decisis that Casey & Roe were the law of the land.17

Some may see this article as the frustrated musings of a person whose “side” lost the abortion debate. However, in overturning the right to privacy that had been guaranteed in Roe and Casey for a generation, the Court struck a serious blow to its own legitimacy in the eyes of the American public. Nearly a decade plus after essentially ending a contested presidential election,18 the Supreme Court enjoyed favorability a politician could only dream of.19

The polling shows that by upsetting the applecart in Dobbs, the Supreme Court20 is now being viewed, rightly or wrongly, as far more political. Many on the left have called for President Joseph R. Biden, Jr. to pack the Court or push for Supreme Court term limits. 21 With more and more people arguing the Supreme Court has gone rogue22, this could eventually lead for a push to state the Supreme Court lacks jurisdiction to conduct judicial review under Article III, and that Marbury v. Madison does not need to be followed — the ultimate death of stare decisis. Whether or not you agree with the Supreme Court of the United States on overturning Roe, one of the “profound moral issues”23 of our time, it is clear we are in unchartered waters as a nation, and in the legal field. With the death of Roe and Casey, now no cow is too sacred, and a few untimely deaths or retirements on the Bench could shake up a now far more politicized Court again. This decisive attack on stare decisis by the Roberts Court may lead to someday Dobbs, Bruen24, Citizen’s United25 or other “settled law” finding themselves on the judicial butcher’s table as well.

Raymond Edward Baker is a Berks County assistant district attorney.

** The Opinions & Statements expressed in this article are the sole opinion of its author and do not reflect the Opinions, Policies, or Procedures of the Berks County District Attorney’s Office.**

1 The Opinion was originally leaked on May 2, 2022, while this was of grave concern to some, it wasn’t the first time a decision was leaked (Ironically enough Roe v. Wade itself was leaked prior to issuance) and there is no way to know whom leaked it and for what reason. 2 Dobbs at 6. 3 Dobbs at 69. 4 There are certain exceptions for areas in The United States and Canada such as Louisiana and Quebec respectively as they have influences in their legal systems from their times as French Colonies. 5 USCS Const. Art. III. 6 “Jefferson on the Supreme Court.” The New York Times, The New York Times, 23 June 1861, https://www.nytimes.com/1861/06/23/archives/jefferson-on-the-supreme-court.html. 7 Marbury v. Madison 5 U.S. 137 (1803). 8 Plessy v. Ferguson, 163 U.S. 537 (1896). 9 Dredd Scott v. Sanford, 60 U.S. 393 (1856). 10 Brown et. Al. v. Board of Education of Topeka Et. Al., 347 U.S. 483 (1954). 11 Lawrence v. Texas, 539 U.S. 558 (2003). 12 Bowers v. Hardwick, 478 U.S. 186 (1986). 13 District of Columbia v. Heller, 554 U.S. 570 (2008). 14 United States v. Miller, 307 U.S. 174 (1939); Presser v. Illinois 116 U.S. 252 (1886); United States v. Cruikshank, 92 U.S. 542 (1875). 15 Supporters of the Dobbs Ruling will note that the Court merely “returned the issue to the States” but since prior to the ruling under Roe & Casey all States were barred from banning abortion, returning it to the states is akin to stripping away the right based solely upon where one lives. 16 June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020); In Russo, the Majority Opinion directly cited Stare Decisis as to why Casey must stand as the law. 17 Whole Woman's Health v. Hellerstedt, 579 U.S. 582 (2016) – In addition, there are countless more cases that would fill up the footnotes. 18 Bush v. Gore 531 U.S. 98 (2000). 19 Gallup, Inc. “Gallup Polling of The United States Supreme Court.” Gallup.com, Gallup, Inc., 24 Aug. 2022, https://news.gallup.com/poll/4732/supreme-court.aspx. 20 Savage, Charlie. “'Court Packing' Issue Divides Commission Appointed by Biden.” The New York Times, The New York Times, 8 Dec. 2021, https://www.nytimes.com/2021/12/07/us/politics/ supreme-court-packing-expansion.html. 21 United States, Congress, Supreme Court Term Limits and Regular Appointments Act of 2020. 2020. U.S. G.P.O. Congress. 22 Ford, Matt, et al. “The Chief Justice Who Isn't: How John Roberts Lost Control of the Supreme Court.” The New Republic, 20 Oct. 2022, https://newrepublic.com/article/168051/john-robertslost-control-supreme-court?utm_source=newsletter&utm_medium=email&utm_ campaign=tnr_daily. 23 Dobbs at 1. 24 New York State Rifle & Pistol Association Inc. v. Bruen 597 US _ (2022). 25 Citizens United v. Federal Election Commission 558 US 310 (2010).