After Roe: Will the Court be less likely to follow precedents?
By Stefanie Lindquist
Stefanie Lindquist argues that the tendency of the current Supreme Court to overturn precedent represents a challenge to the expectations of citizens regarding stability in the rule of law and in judicial behavior respecting precedent: “Once the informal and cooperative norm of stare decisis breaks down, other decisions could more likely be up for grabs once the Court changes composition in the future, as it surely will.”
Roe v. Wade and Planned Parenthood v. Casey were once considered—by some—to constitute “super precedents.” Constitutional Law Professor Michael Gerhart has described “super precedents” as constitutional decisions “in which public institutions have heavily invested, repeatedly relied, and consistently supported over a significant period of time.” Gerhart is unconvinced that Roe (and by extension Casey) rose to the level of super precedent, but others disagree. Judge Michael Luttig, a highly prominent and conservative former federal judge, concluded that Casey was a decision “of super-stare decisis with respect to a woman’s fundamental right to choose whether or not to proceed with a pregnancy.”
Regardless of whether Roe and Casey fall into the category of “super precedent,” no one should doubt the monumental nature of the decision to overturn them. Although the Supreme Court overturns, on average, 2.5 precedents per term, rarely are those precedents so widely known or politically important. What are the implications, over the long term, to overruling such important precedents at the U.S. Supreme Court?
First, it’s important to understand that stare decisis—the doctrine of precedent that in Latin means “let the decision stand”—is an informal norm at the Supreme Court. No legislative or constitutional rule imposes sanctions on the Court if it chooses to abide by, or overrule, existing precedent. The Court, like all other appellate courts in the United States, chooses to follow precedent as an informal constraint on judicial behavior. That is, the justices follow stare decisis as a matter of discretionary choice.
Why would justices, selected for their policy preferences, follow stare decisis when existing precedent conflicts with their ideological predispositions? Certainly there are institutional reasons to do so: precedent creates a more efficient process of dispute resolution, as judges need not reconsider the prevailing legal rule in every case anew. The doctrine of stare decisis also promotes predictability and stability in those legal rules, which are critical to the rule of law. It ensures that like cases are treated alike, thus promoting fairness. And there may be clear injustice in an existing precedent. Brown v. Board of Education’s overruling of Plessy v. Ferguson illustrates that point.
In addition, however, judges know this principle described by Judge Frank Easterbrook: “each justice may find it advantageous to follow rules announced by his predecessors, so that successors will follow his rules in turn.” To the extent that judges care that their own rulings continue to govern outcomes in related cases, they might also respect the rulings of their fellow judges in order to promote adherence to their own precedents. In short, judges know that, in the language of game theory, respect for stare decisis constitutes a “repeated cooperative game” characterized by a form of “tit for tat” strategy. I respect your precedents, and you respect mine--now and in the future. When that strategy fails and cooperation breaks down, the doctrine of stare decisis unravels and becomes meaningless. This happens in real life. For example, would a Senate Democratic majority allow a Republican president to advance a Supreme Court nominee after Merrick Garland? Doubtful. The precedent that the senators respect a sitting president’s right to nominate a justice—and the Senate’s duty to vet that candidate—may have now been irrevocably altered by the failed Garland nomination.
Which brings us back to Roe v. Wade and Planned Parenthood v. Casey. Some will surely argue that overruling Roe rectifies a social injustice, as in Brown. Because the public is so divided on the morality of abortion, however, the choice to overrule Roe and Casey may have outsized consequences for the norm of stare decisis. This is especially true given the politicized nature of the choice to overrule them, which appears to stem from a change in Court personnel. Once the informal and cooperative norm of stare decisis breaks down, other decisions could more likely be up for grabs once the Court changes composition in the future, as it surely will. For example, Heller v. District of Columbia, which interpreted the Second Amendment to protect the individual right to bear arms, was decided by a 5-4 vote. If the doctrine of stare decisis erodes at the Supreme Court, conservatives who cherish their Second Amendment rights have reason to be concerned. Why would liberal justices on a future Supreme Court respect their predecessors’ rulings when Roe and Casey were reputed based solely on changing personnel on the Court? In the long term, overruling Roe and Casey may undermine the very decisions that the conservative justices so clearly cherish. This is true because overruling Roe and Casey may have outsized consequences for the cooperative norm of stare decisis at the U.S. Supreme Court.
Stefanie Lindquist is the executive director of the Center for Constitutional Design and a Foundation Professor of law and political science in the School of Global Politics and the Sandra Day O'Connor College of Law at ASU. Her prior service at ASU includes heading ASU's Global Academic Initiatives as senior vice president in the Office of the Provost. She is recognized as an expert on the U.S. Supreme Court, Constitutional Law, and Administrative Law. She has co-authored three books and has authored dozens of published articles and book chapters. Her book, "Measuring Judicial Activism," is the first publication to define the oft-used term quantitatively.