During the past five months, two US Supreme Court justices, Elena Kagan and Stephen Breyer, have raised the alarm that this Court (with new justices Niel Gorsuch and Brett Kavanaugh) appears to be more willing to overturn existing precedent [1]. These warnings lobbed by two traditionally left-leaning justices at their conservative-leaning colleauges have echoed across liberal American politics and media, with major issues such as LGBT+ rights and abortion likely to make their way to the Court in the near future. With these concerns about overturning precedent and fancy terms like stare decisis being thrown around, it is worth asking, “What is the value of precedent?”, and “What leads some justices to care more about it than others?”
Contrary to popular belief, there is ironically ample precedent for overturning precedent. As recently as 2015, both Kagan and Breyer cast impactful votes to overturn longstanding precedent in Obergefell v Hodges, which legalized same-sex marriage nationwide. Through its history the Court has infrequently, but consistently, overturned its past rulings. Here are a few major cases in which this happened [2]:
Brown v Board of Education (1954) overturned Plessy v Fergeson (1896)
- Declared racial segregation unconstitutional
Loving v Virginia (1967) overturned Pace v Alabama (1883)
- Declared laws barring interacial marriage unconstitutional
Lawrence v Texas (2003) overturned Bowers v Hardwick (1986)
- Declared sodomy laws unconstitutional
Obergefell v Hodges (2015) overturned Baker v Nelson (1971)
- Declared laws barring same-sex marriage unconstitutional
Each of these cases is incredibly important to the current fabric of American society, and in each circumstance the Court was right to overturn past incorrect precedent. These undoubtedly are decisions justices like Kagan, Breyer, Sotomayor, and Ginsburg feel were appropriate. It could be said these cases were exceptional; however, while groundbreaking in other ways, they were far from alone in overturning precedent. By 2016, the Supreme Court had overturned a previous ruling 236 times [2]. Some of these 236 are well-known, some are obscure, some overturned longstanding and fundamental precedent, and some did away with precedent containing such specific applications that most Americans never noticed. With a number so large, it seems the only unifying factor among each of these cases is the necessary characteristic that in each scenario the justices felt that a past court had incorrectly interpreted the Constitution.
Today there are still cases that both liberals and conservatives largely want overturned. Obviously many conservatives would like to invalidate Roe v Wade (1973) and Planned Parenthood v Casey (1992), the cases that legalized abortion nationwide. Less often mentioned however is liberals’ desire to nullify the landmark campaign finance case Citizens United v FEC (2010) [3].
So what is going on? Why does precedent matter so much now when it was expendable in the past, even to the same justices currently raising the alarm? Does precedent only matter to the justices when it supports positions they already hold? The answer to that question is impossible to know without reading the minds of the Court members, but the circumstances look suspicious.
There is inherent value in maintaining precedent. Precedent is vital for lower courts to adhere to. Without it the Supreme Court would have to settle hundreds of cases each year—making its docket unmanageable. Additionally, even at the Supreme Court level, precedent has value. Ensuring that interpretation of the Constitution is relatively stable helps to maintain rule of law. Without somewhat stable interpretation, the Constitution is not much of a constitution at all. Nonetheless, consistency for consistency’s sake is not valuable enough for any current Supreme Court to uphold a decision it finds to be contrary to the Constitution, particularly when the Court finds that ruling has a harmful impact on the populace.
“The Court should never be influenced by the weather of the day but inevitably they will be influenced by the climate of the era.” [4]
- Paul A. Freund
[2] https://www.congress.gov/content/conan/pdf/GPO-CONAN-2017-13.pdf
[3] https://www.opensecrets.org/news/2019/06/2020-democrats-stands-on-campaign-finance/