What Supreme Court’s jettisoning of precedent may mean for future

Erin Schaff/Reuters
(Top row, left to right) Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch, and Associate Justice Amy Coney Barrett and (bottom row, left to right) Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer, and Associate Justice Sonia Sotomayor shown at the Supreme Court in Washington on April 23, 2021.

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The Supreme Court has, for the best part of a century, regularly overturned precedents – led by justices of all ideological stripes. But the theory underlying those decisions – that the court must be asked first, and that a “special justification” is needed – has been applied with relative consistency.

As the justices prepare in the coming months to review precedents on contentious issues like abortion rights, gun rights, and the nexus of LGBTQ rights and religious liberty, that consistency with which precedent is treated seems to be shifting.

Why We Wrote This

What happens when “settled law” isn’t really settled? Supreme Court justices are showing a greater willingness to toss precedent – even when they haven’t been asked to do so.

“We are in the midst of a change in how Supreme Court justices treat established precedent,” says Kimberly West-Faulcon, a professor at Loyola Law School in Los Angeles.

The ramifications could be significant.

“It is important to have confidence that the meaning of the US Constitution does not change because the personnel of the Supreme Court changes,” says Professor West-Faulcon.

“More importantly, it makes individual justices who are currently sitting on the Supreme Court far more powerful than in the past,” she adds. “If you are not obligated to make exceptions for the vast majority of already decided cases, no prior legal rule is safe.”

Earlier this week the conservative supermajority on the U.S. Supreme Court voted to scrap a legal rule that, while decades old, had never really been used.

On the surface it may not seem like a radical move – the judicial equivalent of canceling a gym membership you never use. The so-called watershed exception – that criminal rules don’t apply retroactively unless they represent a major procedural change – had never been applied in its 32-year history, Justice Brett Kavanaugh wrote in the court’s majority opinion.

But on closer examination, and in the context of other actions the court took this week, scrapping the watershed exception suggests that the court – in particular its conservative wing – has a more gung-ho attitude toward overturning precedent than in the past.

Why We Wrote This

What happens when “settled law” isn’t really settled? Supreme Court justices are showing a greater willingness to toss precedent – even when they haven’t been asked to do so.

Respect for precedent is a founding principle of the U.S. legal system, and overturning it is one of the Supreme Court’s defining powers. In a 1932 dissent, Justice Louis Brandeis explained why the high court should, generally, respect past decisions: “In most matters,” he wrote, “it is more important that the applicable rule of law be settled than that it be settled right.”

In other words, following earlier rulings (i.e., precedent) is important even if you disagree with those earlier rulings. Past rulings should only be overturned if there’s “special justification.”

The legal doctrine the justices follow when reviewing precedent is known as stare decisis – taken from a Latin maxim “to stand by things decided and not disturb settled points.” The doctrine has no formal boundaries, so which “matters” fall outside the “most matters” described by Brandeis?

In recent decades, as conservative jurists – and judicial philosophies like originalism – have come to dominate the high court, how those justices interpret stare decisis has become the defining debate.

Justice Antonin Scalia helped entrench the originalist philosophy, which holds that the Constitution should be interpreted as the framers intended. He was also reluctant to overturn precedent, describing stare decisis as a “pragmatic exception” to originalism. Originalists on the court today, such as Justices Clarence Thomas and Amy Coney Barrett, have expressed much less reluctance, however.

“We are in the midst of a change in how Supreme Court justices treat established precedent,” says Kimberly West-Faulcon, a professor at Loyola Law School in Los Angeles, in an email.

Those views were on display this week, and with the court set to review a key abortion precedent next term, they will likely guide some of the court’s future rulings.

“A lot of wiggle room”

The stare decisis doctrine “is far from a model of clarity,” says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.

“It leaves a lot of wiggle room” for any justice, he continues, “to overturn any precedent he or she thinks is badly wrong, and also so long as getting rid of it will not cause some kind of enormous harm in society.”

The court’s liberal justices have indulged this trend to a degree – casting important votes in recent years to overturn precedents regarding same-sex marriage and state laws criminalizing sodomy – but since they have been an ideological minority on the court for decades, they have not been as active as their conservative colleagues.

And how the court’s conservative justices view precedent does seem to be shifting. The fact that they abandoned the watershed exception this week despite the question never being asked or argued is one indicator. And their individual records provide further indications.

Justice Scalia famously said that Justice Thomas “does not believe in stare decisis, period.” And as of 2019, Justice Thomas had written more than 250 opinions seriously questioning precedent, according to Stephen Wasby, a professor of political science at the University at Albany.

But where Justice Thomas used to write these opinions alone, he is now finding support from several colleagues.

Justice Kavanaugh – who, having voted with the majority more than any other justice this term, is effectively the court’s ideological center – has shown a recent, expansive view toward overruling precedent. In addition to his opinion this week scrapping the watershed exception, earlier this term he wrote an opinion effectively overturning a 2016 ruling that barred life without parole sentences for nearly all juvenile offenders.

And as court watchers, and some of his colleagues, have noted, he has been overturning precedent with less clarity and consistency than Justice Thomas.

Meanwhile, the newest member of the court, Justice Barrett, wrote extensively on stare decisis while teaching law at the University of Notre Dame. The doctrine is a “soft rule,” she wrote in one article; “modern originalism” raised the possibility that “following precedent might sometimes be unlawful,” she wrote in another. In a third, she wrote that “rigid application” of stare decisis “raises due-process concerns and, on occasion, slides into unconstitutionality.”

When does precedent get overturned?

Beyond that, jettisoning the watershed exception illustrates “the court’s willingness to overrule [a precedent] rather than just leave it,” says Douglas Berman, a professor at the Ohio State University Moritz College of Law.

“The willingness of this court to embrace a shift in doctrine, even when they didn’t have to, that’s the key,” he adds.

Indeed, a core principle of overturning precedent is that the justices should first be asked to consider overturning a precedent. That is not something they were asked to address in their ruling this week in Edwards v. Vannoy.

The case instead asked the court if a decision it made last year – barring convictions from non-unanimous juries – applied retroactively. That practice, in Oregon and Louisiana, had roots in the Jim Crow era. For decades, when considering such a question the Supreme Court had followed a precedent holding that no new criminal rules would apply retroactively unless they constitute “watershed” new procedures.

In the 32 years since that exception was written, Justice Kavanaugh said in the majority opinion, “the Court has never found that any new procedural rule actually satisfies the purported exception.”

“No one can reasonably rely on an exception that is non-existent in practice,” he added. “The watershed exception must ‘be regarded as retaining no vitality.’”

Practically, the ruling this week means that hundreds of people convicted by non-unanimous juries in Louisiana and Oregon must serve the remainder of their sentences – even though the method of their conviction has been deemed unconstitutional.

The ruling broke along ideological divides, with Justice Kavanaugh joined by the court’s five other conservatives. Meanwhile Justice Elena Kagan, joined by the court’s two other liberals, criticized the abandonment of the exception in a dissent that struck at the heart of the court’s long-running debate about precedent.

The majority “discards precedent without a party requesting that action,” she wrote. “And it does so with barely a reason given, much less the ‘special justification’ our law demands.”

Justice Kagan wrote with some added authority because, as she pointed out in a footnote, she had dissented from the court’s ruling last year on non-unanimous jury verdicts “precisely because of its abandonment of stare decisis.”

But with that Ramos v. Louisiana ruling now law, she added, “I take the decision on its own terms, and give it all the consequence it deserves.”

The Supreme Court has, for the best part of a century, regularly overturned precedents – led by justices of all ideological stripes. But the theory underlying those decisions – that the court must be asked first, and that a special justification is needed – while admittedly open to some interpretation, has been applied with relative consistency.

The Edwards ruling is one indication of how that consistency is disappearing. And the court is now preparing, in the coming months and years, to review weightier precedents on issues like abortion rights, gun rights, and the nexus of LGBTQ rights and religious liberty. 

The ramifications could be significant.

“It is important to have confidence that the meaning of the US Constitution does not change because the personnel of the Supreme Court changes,” says Professor West-Faulcon.

“More importantly, it makes individual justices who are currently sitting on the Supreme Court far more powerful than in the past,” she adds. “If you are not obligated to make exceptions for the vast majority of already decided cases, no prior legal rule is safe.”

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