This is a decent article on the precedent about precedent aspect:
Well, I’m not the lawyer, you are. Did Breyer (or anyone in the majority) discuss why they were overturning precedent? It was pretty recent precedent in those cases, so I’d be surprised if they didn’t. Did they do the type of analysis that they claim went wrong in the Hyatt case? (These are genuine questions – I’d be surprised if any justice seemed just completely arbitrary – they usually have at least some sort of fig leaf about why this time is different)
I don’t recall what op-eds the NY Times included when those opinions were issued, and I’m not really interested in discussing that. I don’t see how it has any relevance to this discussion.
I am not at all confident that either Roberts and especially the current pair of Trump appointees is going to demonstrate a great deal of respect for stare decisis if it suits their ideology to do otherwise. And this could be very, very bad.
It’s not just Roe v Wade but a whole swath of social and other legislation that’s been narrowly decided in recent times, like gay rights and the ACA itself.
Consider, for example, United States v. Windsor. Although Obergefell v. Hodges is generally seen as “the” landmark case for gay rights, Windsor was at least as significant if not more so. Both cases were decided 5-4 with Stevens as the swing vote and Roberts dissenting. Windsor was noteworthy for Stevens’ eloquent and compassionate ruling:
DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects … and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
As for the dissent, which likely would now be the majority, some of it was vicious, mean, and mendacious. Laurence Tribe, a professor of constitutional law at Harvard Law School, was especially critical of Scalia: “[he] described Scalia’s response and dissent as ‘intemperate’, ‘extraordinary’, and ‘at the very least, an exercise in jurisprudential cynicism’. He considered that Scalia appeared to have been unable to resist "the temptation to use the occasion to insult the Court’s majority, and Justice Kennedy in particular, in essentially ad hominem … terms’.”
Of course Scalia is no longer with us, but he’s been replaced by a Bible-thumping evangelical nutcase, and Kennedy by a far-right drunken misogynist and would-be rapist who wears his extremist ideology on his sleeve. There is some finite risk here of undoing many decades of social progress were there to be an opportunity to overrule or undermine these decisions.
Well, the problem with applying stare decisis comes from individual proclivities of judges, even if they are trying to apply reasonable standards. Take Bone’s factors above and apply them to Roe/Casey:
- Quality of Reasoning.
Breyer would say that Roe/Casey were well reasoned, but Thomas/Gorsuch would say that they are awful.
2) Workability.
Breyer would say that abortion jurisprudence is very workable. Simply do not put undue burdens on women seeking abortions.
Thomas/Gorsuch would say that it is unworkable due to abortion cases coming up every year despite Roe’s nearly 50 year history. States are unsure about admitting requirements, waiting periods, how many weeks gestation is okay and judges split all over the place about them.
3) Inconsistency with Related Decisions.
Breyer would say that Roe is consistent with Griswold, Loving, Obergefell and all of the right to privacy determinations.
Thomas/Gorsuch would say that Roe is inconsistent with even Casey, Webster, the partial birth abortion cases, and the other body of law that allows states leeway in their police powers.
4) Changed Understanding of Relevant Facts.
Breyer: No change.
Thomas/Gorsuch: Modern medical science has undermined the holding of Roe in that Roe was too focused on the woman’s right to abortion instead of the living organism inside of her which we can observe more clearly with modern technology.
- Reliance.
Breyer: Millions of women have grown up in a society where they believed and structured their sexual lives around a regime where abortion was a guaranteed constitutional right and have relied on Roe.
Thomas/Gorsuch: Nonsense. All overruling Roe would do is return the issue to the states where women could convince the legislature to keep abortion legal. If the legislature outlawed it, then women would either have to use birth control or travel to other states where abortion is legal.
So, to bootstrap off of Richard Parker, we don’t just have a debate about the precedence of precedence. We have a debate on the facts underlying the factors which decide the precedence of precedence. 
Here’s a National Review article anticipating the Lawrence v. Texas decision, and hand wringing about how the liberals will be approaching stare decisis there vs how the conservative case stacks up for overturning Roe.
There’s a bit more to it than that. In Kuhn v. Flood, the Court literally said “we were absolutely wrong about this but we’re going to stick with out decision.” In most cases, the Court will undo precedent when necessary, based on the five-part test quoted by others.
I’m not hugely concerned about what Hyatt says about Roe. Hyatt involved a relatively unusual scenario and there isn’t a whole lot of public policy or private activity which depends on the underlying precedent.
Nor do I think it’s very useful to compare the Roberts court to earlier iterations, since it has much less opportunity to depart from wrongly decided cases than earlier courts.
Agreed. I read that cases of the type that occurred in *Hyatt *have be raised 14 times in 40 years. That precedent was not heavily relied upon.
Another instance of precedent being overturned was in the 2018 decision in South Dakota v Wayfair Inc.. Wayfair overturned the 1992 ruling in Quill Corp v North Dakota which had held that a state cannot compel a business to collect sales tax if that business does not have a physical presence in that state.
Quill Corp was a decision that affected major sectors of the economy and many millions of transactions as more and more commerce moved to e-commerce retailers. Huge and rapidly growing sectors of the economy relied upon that decision.
*Wayfair *was authored by Kennedy, with Thomas, Ginsburg, Alito,and Gorsuch joining the majority opinion. Roberts filed a dissent that was joined by Breyer, Sotomayor, and Kagan. Did Ginsburg have no respect for stare decisis!? Does that mean she is going to vote to overturn Roe? :dubious:
Wayfair’s substantially distinguishable, since there was very clearly a “changed understanding of relevant facts” in that ecommerce basically didn’t exist at the time of Quill.
I am not going to do a ptest on it but the other courts overturned precedents at a double or triple rate the Roberts court does, that seems a significant change, perhaps not statistically but still a change.
The purpose of the Supreme Court is to give guidance to lower courts and the government as to what is and is not constitutional. A good decision lets people know what can be done and what can not. A bad decision keeps people guessing as to what is and is not legal. A speed limit of 55 is a good law and a speed limit of drive safely is a bad law.
Wrongly decided cases fall into two camps, wrong but working and wrong and controversial. I think the Miranda decision was wrong because it is possible for a defendant to freely confess without a miranda warning. However it is working because it gives cops an easy way to tell if a confession is freely given or not and it has been incorporated into police procedures in a workable way. So Miranda should not be overturned.
Current abortion law is that states may not pass laws that constitute an undue burden on the right to an abortion. What constitutes undue burden is different for everybody and so whenever the Supreme Court gets a new member the law changes. This is untenable. Likewise the right to privacy is incoherent there is no reason to think it covers abortion but not heroin use. Roe v Wade should be overturned.
And there is where the debate comes in. Why is it relevant that more commerce is now being done interstate than in 1992? The ruling was that a state could only tax businesses physically located in their jurisdiction because that was what the law said the extent of the taxing power was.
This wasn’t a policy choice, it was based upon constitutional principles the Dormant Commerce Clause and allowing states to impose these taxes would infringe upon interstate commerce. Why should that change because of an emerging technology? If anything the states are now allowed to infringe on even more interstate commerce. Does the Constitution say one thing if only a few people do something, but when more people do it, the text or the meaning changes?
Couldn’t it equally be argued that states should alter their tax structures in response to this change? For example, not rely so heavily on sales taxes (if at all) so that brick and mortar stores were not put at a disadvantage?
That’s an oversimplification. It was based on an analysis of the burden that would be imposed by states taxing mail order purchases. It was much harder for retailers to collect state sales taxes on mail order shipments in 1992 than it was in 2018.
I wanted to come back to this in view of a recent news story. The short version is that a gay couple, both American citizens, had a baby via surrogate mother who happened to be Canadian. In circumstances where a heterosexual couple would automatically have had US citizenship conferred on the baby, this baby and its entire family are getting a great big “fuck you” from the Trump administration.
The couple say they will file legal action when they get the official letter of denial. The State Department will no doubt appeal, and since the last I checked the US government was not short of high-priced lawyers, this could very well end up being heard by the Supreme Court, which of course now includes the two newly appointed far-right lunatics forming a coalition with the other three.
The point here is that even if stare decisis is maintained on Windsor and Obergefell, there is lots of opportunity for wingnuts to continue cruel and discriminatory policies, and this can be taken as a model for other social policy rollbacks. I fear that the Trump legacy will be around doing damage to the social fabric for a long time yet to come.
Earlier thread.
While the couple certainly allege that a similarly situated straight couple would be treated differently that is not my experience in dealing with immigration issues related to children born abroad via assisted reproductive techniques. In short, US immigration law follows the DNA in the absence of a legal adoption.
Thanks, I wasn’t aware of the case in the other thread or of the existence of the other thread, but I read through it, and the consensus there was that gay couples tend to find themselves being discriminated against more often in these situations, even if that wasn’t the outcome in your OP in that thread.
My point, in any case, was to raise the question of how this case would fare if this couple got a favorable ruling and then on appeal it escalated to the Supreme Court, given the current makeup of the court.
Stare decisis swings both ways. I understand the court does not want to whipsaw from one position to another and should give weight to precedent but I see no reason why they should respect a shitty decision just because it was made years ago.
There are lots of bad Supreme Court decisions. Some overturned, some still in effect. Should something like Citizen’s United be allowed to continue forever because five people at one moment in history said it was a good idea?
I agree the court should be cautious about overturning precedent and give it careful thought but there is nothing magical about it and a bad decision can and should be overturned.
I say this knowing the current crop will gleefully do so. I also hope that, down the road, we can gleefully undo their malicious and terrible decisions.
The Abortion Fight and the Pretense of Precedent
“State legislators have proposed Draconian new laws on the assumption that, when they come before the Supreme Court, they will be used to vanquish Roe v. Wade once and for all.”