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Long History of Supreme Court Reversals
Roberts Court Reversals

Throughout its history, the Court has overturned its own precedents more than 240 times, and a 2018 Mississippi state abortion law presents the prospect of it happening again, challenging Roe v. Wade in a much talked about case in 2021. In thisCourt Report, court expert Kenneth Jost looks at stare decisis and reversals over the years, and how recent trends can give us insights into how the Mississippi abortion case might be decided.

A lawyer representing the state of Mississippi appeared before the U.S. Supreme Court on December 1 to urge the justices to overrule the controversial 48-year-old precedent known as Roe v. Wade that established a qualified constitutional right to abortion nationwide.

Scott Stewart, the state’s solicitor general, faced the challenge of persuading the justices to depart from the legal doctrine of respecting precedent, known in Latin as stare decisis (“let the decision stand”). Stewart, a former law clerk for Justice Clarence Thomas, defended a Mississippi law that bans abortions after the fifteenth week of pregnancy. The law, enacted in 2018, directly contradicts the rule from Roe v. Wade that protects the right to abortion until a fetus is viable outside the womb, usually regarded as after the twenty-second week of pregnancy.

Two lower federal courts had already ruled the Mississippi law unconstitutional. The state appealed to the Supreme Court in the name of the state’s health director, Thomas Dobbs, in a petition for certiorari filed in June 2020. In that petition, the state argued that the Court could uphold the law without overruling Roe v. Wade on the ground that it affected only a small fraction of abortions performed in the state. The Court kept the petition under advisement for almost a year before agreeing to hear the state’s appeal on May 17, 2021.

The state’s brief on the merits, filed two months later on July 22, explicitly asked the Court to overrule its line of decisions subjecting restrictions on abortions to heightened scrutiny. Those decisions, the state argued, “are egregiously wrong.” Instead, the brief argued, “The Constitution does not protect a right to abortion or limit the states’ authority to restrict abortion.”

The Court’s decision to hear the case, Dobbs v. Jackson Women’s Health Organization , gave anti-abortion groups realistic hopes of finally overturning a Supreme Court precedent that they have consistently attacked as illegitimate ever since the 7–2 decision was issued. Four justices called for overruling the decision in dissenting from the later ruling in Planned Parenthood of S.E. Pa. v. Casey (1992) that reaffirmed Roe’s essential holding.

On the current Court, Thomas has repeatedly urged overruling Roe. In his confirmation hearing in 1991, Thomas avoided a direct answer about the decision by stating that he had never discussed the ruling before his appointment to the federal bench. In her confirmation hearing in 2020, the future justice Amy Coney Barrett also avoided a direct answer on whether she would vote to overrule Roe. While on the Notre Dame Law School faculty, Barrett had strongly criticized the decision.

A long list of religious organizations and conservative advocacy groups filed more than forty amicus briefs supporting the state’s position within the next week in July. By mid-September, the Jackson-based abortion clinic filed its own brief. “There is no justification for overruling Casey and Roe,” the clinic’s lawyers wrote in the brief. “None of the State’s arguments provides a basis for overruling the viability line,” they added. A long list of reproductive-rights advocates filed more than forty amicus briefs on the clinic’s side within a week.

The Biden administration filed a separate brief the same day, on September 20, that urged the Court to reaffirm Roe and Casey. “Stare decisis requires adherence to Roe and Casey,” the government’s lawyers wrote. “The viability line remains clear and workable,” they added. The government also asked for divided argument in order to argue alongside the clinic’s lawyer against the Mississippi law.

Solicitor General Elizabeth Prelogar argued the government’s position after Julie Rikelman, a lawyer from the New York-based Center for Reproductive Rights, presented the main argument against the law. The Court will take the case under advisement after arguments with a decision due sometime before the end of the term in late June.

Long History of Supreme Court Reversals

The Supreme Court and individual justices routinely pledge obeisance to stare decisis even though the Court has reversed its own prior decisions more than 240 times through history, beginning as early as the 19th century. In one of the recent such decisions, the Court in 2020 established a nationwide rule requiring convictions in criminal cases to be supported by unanimous jury verdicts. The ruling in Ramos v. Louisiana (2020) affected two states, Louisiana and Oregon, that had permitted nonunanimous jury verdicts under the authority of an earlier Supreme Court decision, Apodaca v. Oregon (1972).

In his confirmation hearings in 2005, the future chief justice John G. Roberts Jr. was wary about reversing prior decisions. “I do think that it is a jolt to the legal system when you overrule a precedent,” Roberts said after being asked about the status of Roe v. Wade. “Precedent plays an important role in promoting stability and evenhandedness,” Roberts added. “It is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question; it just poses the question.”

Roberts was one of three dissenters in Ramos. So far, in his fifteen terms as chief justice, the Court has overturned prior decisions in eighteen cases, according to the count in Supreme Court Yearbook (CQ Press). In one of those decisions, Citizens United v. Federal Election Commission (2010), Roberts wrote a separate, nine-page concurring opinion to explain his vote to join the 5–4 decision overruling an earlier campaign finance decision, Austin v. Michigan Chamber of Commerce (1990), that had prohibited corporations from making independent expenditures in political campaigns. As one of several factors, Roberts noted that the earlier decision had included two vigorous dissents and that justices had disagreed about the earlier decision ever since.

In an earlier Supreme Court reversal, the then-chief justice William H. Rehnquist was ambivalent about the role of stare decisis as he led a 7–2 majority in a decision that overruled two recent precedents that had barred victim impact evidence in capital sentencing hearings. Writing for the majority in Payne v. Tennessee (1991), Rehnquist put it this way: “Stare decisis is not an inexorable command. Rather, it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision,” Rehnquist wrote, quoting from an earlier decision.

In overruling the earlier decisions, Rehnquist flatly declared that they were “wrongly decided and should be, and now are, overruled.” Rehnquist went on note that the Court had overruled thirty-three prior constitutional law decisions within the previous twenty terms. He attached a footnote that listed more than fifty such reversals dating from the late 19th century and through the 20th century.

Rehnquist’s exhaustive list did not include the most famous 20th century reversal, the Court’s school desegregation decision in Brown v. Board of Education (1954); Brown overruled the 19th century decision in Plessy v. Ferguson (1896) that had upheld a Louisiana law requiring racial segregation of passengers in railroad cars. Writing for the unanimous Court in Brown, Chief Justice Earl Warren explained that segregation of white and colored children [sic] “has a detrimental effect upon the colored children.” This finding, Warren added, “is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.”

Other 20th-century reversals include another victory for equal justice—specifically, for LGBTQ individuals. The 6–3 decision in Lawrence v. Texas (2003), issued two years before Roberts joined the Court, struck down Texas’s anti-sodomy law in a case against two gay men arrested for having consensual sex in their home. The decision overruled an earlier 5–4 ruling in Bowers v. Hardwick (1986) that had upheld Georgia’s anti-sodomy law. Writing for the majority in Lawrence, Justice Anthony M. Kennedy was blunt in rejecting the earlier decision. “Bowers was not correct when it was decided, and it is not correct today,” Kennedy wrote. “It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

In another landmark reversal, the Court in Gideon v. Wainwright (1963) established the constitutional rule that states must provide counsel to an indigent defendant in a serious criminal case. The unanimous decision overturned the earlier 6–3 ruling in Betts v. Brady (1942) that had declined to require counsel for indigent criminal defendants. Writing for six justices in Gideon, Justice Hugo Black rejected the Betts v. Brady approach of leaving appointment of counsel for indigent defendants up the states based on circumstances. Black explained instead that the right to counsel was “fundamental” and counsel was “essential for a fair trial and due process of law regardless of the circumstances of the case.”

Roberts Court Reversals

The Roberts Court’s tally of eighteen reversals in his first fourteen terms is somewhat lower than the pace of reversals under two previous chief justices, Rehnquist and Warren E. Burger. Roberts demonstrated his respect for precedent in an abortion-related case by casting the pivotal vote in the 5–4 decision in June Medical Services v. Russo (2020) to strike down a Louisiana law imposing stringent regulations on abortion clinics. Roberts joined four liberal justices in the decision on the basis of an earlier decision, Whole Woman’s Health v. Hellerstedt (2016), that struck down a similar Texas law. Roberts had dissented in the Texas case, but set aside his previous view. “Stare decisis instructs us to treat like cases alike,” Roberts wrote in his concurring opinion. “The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law.”

In addition to Ramos, the Roberts Court’s recent reversals of prior decisions also include the 5–4 decision in Janus v. AFSCME (2018), which represented a significant financial setback for public employee unions. The decision struck down on First Amendment grounds an Illinois law allowing public employee unions to require non-union members to pay a so-called agency fee to cover the union’s expenses in representing all employees in collective bargaining.

Justice Samuel Alito led the 5–4 majority in overruling the previous decision in Abood v. Detroit Board of Education (1977) to uphold a similar agency fee imposed on non-union teachers in Detroit. Alito began by acknowledging “the importance of following precedent unless there are strong reasons for not doing so.” He went on to explain what he called “very strong reasons” in the new case. “Abood was poorly reasoned,” Alito wrote. “It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions.”

The Court overturned another prior decision in the same term by upholding in South Dakota v. Wayfair (2018) a South Dakota law requiring businesses without a physical presence in the state to collect state sales taxes on purchases by in-state residents. The ruling rejected two prior decisions: Quill Corp. v. North Dakota (1992) and National Bellas Hess v. Illinois Dep’t of Revenue (1967) that had allowed states to tax retailers only if they maintained a physical presence in the state. In the new decision, the 5–4 majority described “the physical presence rule” from the prior decisions as “an extraordinary imposition by the Judiciary on States’ authority to collect taxes and perform critical public functions.” Roberts led three liberal justices in dissenting from the ruling. He said that he agreed that Bellas Hess was “wrongly decided,” but he warned that the new decision might stunt the development of e-commerce.

The Court overturned two other precedents in the next term. The 5–4 ruling in Franchise Tax Board of California v. Hyatt (2019) barred a Nevada man from suing a California tax agency in a Nevada court for alleged wrongdoing in investigating his California state taxes. Thomas led four other conservatives in the majority; four liberal justices dissented The decision overturned an earlier decision, Nevada v. Hall (1979), that had allowed a private citizen to sue another state in the citizen’s home-state court. Thomas concluded that the earlier decision was “contrary to our constitutional design and the understanding of sovereign immunity shared by the States that ratified the Constitution.”

In the same term, the Court made it easier for property owners to bring takings claims in federal court without first exhausting state court remedies. Roberts wrote the 5–4 decision in Knick v. Township of Scott (2019) in overruling what he called the “state litigation requirement” imposed by the earlier decision, Williamson County Regional Planning Commission v. Hamilton Bank (1985). The requirement, Roberts wrote, “imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled.”

Roberts is widely thought to be averse to flatly overruling Roe v. Wade at the risk of loss of public confidence in the Court’s impartiality. The three liberal justices—Breyer, Sotomayor, and Kagan—are certain to vote in favor of reaffirming Roe v. Wade. But three conservatives—Thomas, Alito, and Gorsuch—are regarded as all but certain to vote in the Mississippi case to overturn Roe’s rule guaranteeing abortion rights up to the point of fetal viability. On that basis, Kavanaugh and Barrett are viewed as holding pivotal votes in the case along with Roberts. Both were closely questioned about Roe v. Wade in their confirmation hearings; both acknowledged the precedent but avoided any direct promise to abide by the precedent in a future case.

 

Document Citation
Kenneth Jost, Testing Power of Precedent in Abortion Case, CQ Supreme Court Collection (2021), http://library.cqpress.com/scc/cqelsc-1619-117793-2993862.
Document ID: cqelsc-1619-117793-2993862
Document URL: http://library.cqpress.com/scc/cqelsc-1619-117793-2993862