# What does Settled Law really mean? **URL:** \ **Category:** Factual Questions\ **Created:** [September 28, 2018, 7:01pm UTC](https://boards.straightdope.com/t/what-does-settled-law-really-mean/822129 "2018-09-28T19:01:23Z")\ **Posts on this page:** 10\ **Page:** 1
**Author:** ![dolphinboy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dolphinboy/32/330_2.png) [@dolphinboy](https://boards.straightdope.com/u/dolphinboy)\ **Post date:** [September 28, 2018, 7:01pm UTC](https://boards.straightdope.com/t/what-does-settled-law-really-mean/822129/1 "2018-09-28T19:01:23Z")
The term settled law is often heard when discussing past SCOTUS decisions, such as Roe v. Wade, which is considered by some to be “settled law”. Can’t the SCOTUS majority overturn any previous SCOTUS decision if the right case is brought up before them? Is there anything stopping them from doing that? It seems to me that the term “settled law” has no real meaning and is just wishful thinking on some people’s part. Someone please fight my ignorance if I have that wrong. Mods: I put this question here because I think there should be a factual answer, but it may wander off into IMHO territory. ---
**Author:** ![nightshadea](https://avatars.discourse-cdn.com/v4/letter/n/7ba0ec/32.png) [@nightshadea](https://boards.straightdope.com/u/nightshadea)\ **Post date:** [September 28, 2018, 7:04pm UTC](https://boards.straightdope.com/t/what-does-settled-law-really-mean/822129/2 "2018-09-28T19:04:01Z")
well they did overturn the separate but equal thing that had been the norm for 90 or so years also capital punishment has been banned and unbanned ……. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [September 28, 2018, 8:12pm UTC](https://boards.straightdope.com/t/what-does-settled-law-really-mean/822129/3 "2018-09-28T20:12:57Z")
In general, stability and predictability are useful for the efficient operation of society. The legal understanding is that once a principle is established in law, there has to be a good reason to modify that decision. The law, especially the major principles, should not be capricious. But yes, SCOTUS can and does occasionally take a 180-degree turn. ---
**Author:** ![MikeS](https://avatars.discourse-cdn.com/v4/letter/m/919ad9/32.png) [@MikeS](https://boards.straightdope.com/u/MikeS)\ **Post date:** [September 28, 2018, 9:20pm UTC](https://boards.straightdope.com/t/what-does-settled-law-really-mean/822129/4 "2018-09-28T21:20:39Z")
The Supreme Court can overrule itself, and in fact [has done so many times.](https://en.wikipedia.org/wiki/List_of_overruled_United_States_Supreme_Court_decisions) However, there’s a general principle called _stare decisis_ (Latin for “stand by decisions” or something like that) that says a court should abide by the precedents it sets in earlier cases, unless there is a convincing reason to do otherwise. The US Supreme Court is more likely to do this (ironically) for constitutional law cases than for ones dealing with federal laws: > [@Louis Brandeis](#): > > _Stare decisis_ is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function. So yeah, in principle the court could overturn _Roe v. Wade_, _Citizens United v. FEC_, or even _Brown v. Board of Education_ if a sufficiently strong case was brought before them that conflicted with those findings. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [September 28, 2018, 11:08pm UTC](https://boards.straightdope.com/t/what-does-settled-law-really-mean/822129/5 "2018-09-28T23:08:41Z")
I think the fastest turnaround the Supremes have ever done was [West Virginia State Board of Education v Barnette (1943)](https://en.wikipedia.org/wiki/West_Virginia_State_Board_of_Education_v._Barnette), which overturned a decision the court made only 3 years before. So nothing is really safe. ---
**Author:** ![MikeS](https://avatars.discourse-cdn.com/v4/letter/m/919ad9/32.png) [@MikeS](https://boards.straightdope.com/u/MikeS)\ **Post date:** [September 29, 2018, 1:52pm UTC](https://boards.straightdope.com/t/what-does-settled-law-really-mean/822129/6 "2018-09-29T13:52:27Z")
> [@silenus](#): > > I think the fastest turnaround the Supremes have ever done was [West Virginia State Board of Education v Barnette (1943)](https://en.wikipedia.org/wiki/West_Virginia_State_Board_of_Education_v._Barnette), which overturned a decision the court made only 3 years before. So nothing is really safe. There have been a few other quick SCOTUS reversals: [ul][li][US v. Dixon (1993)](https://en.wikipedia.org/wiki/United_States_v._Dixon), which overruled [Grady v. Corbin (1990)](https://en.wikipedia.org/wiki/Grady_v._Corbin) on the rules concerning double jeopardy.[/li][li][Payne v. Tennessee (1991)](https://en.wikipedia.org/wiki/Payne_v._Tennessee), which overruled [South Carolina v. Gathers (1989)](https://en.wikipedia.org/wiki/South_Carolina_v._Gathers) on the permissibility of victims’ statements during sentencing hearings.[\*][United States v. Ross (1982)](https://en.wikipedia.org/wiki/United_States_v._Ross), which overturned [Robbins v. California (1981)](https://www.oyez.org/cases/1980/80-148), concerning whether closed containers found during a traffic stop can be searched without a warrant.[/ul][/li]In that last instance, the court justified the quick reversal by saying that the parties in the 1981 case didn’t discuss the issues on which the 1982 case was decided, and therefore the judges didn’t consider them. Seems a bit weak-sauce to me, but there we are. ---
**Author:** ![blob](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/blob/32/489_2.png) [@blob](https://boards.straightdope.com/u/blob)\ **Post date:** [September 29, 2018, 2:05pm UTC](https://boards.straightdope.com/t/what-does-settled-law-really-mean/822129/7 "2018-09-29T14:05:05Z")
> [@dolphinboy](#): > > Is there anything stopping them from doing that? That the law on an issue is considered settle stops them from doing it by restricting the likelihood of a case getting before them. They don’t just go about deciding the same thing over and over, you’ll only get a hearing if you’ve got some new question of law that needs adjudicating. If the law on an issue has lots of questions, it can be more likely that you’ll get before the court on a question. When the law is considered settled, you’re likely to get the bum’s rush if you try to get the court to rehash issues they’ve already determined. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [October 1, 2018, 2:29am UTC](https://boards.straightdope.com/t/what-does-settled-law-really-mean/822129/8 "2018-10-01T02:29:57Z")
> [@dolphinboy](#): > > The term settled law is often heard when discussing past SCOTUS decisions, such as Roe v. Wade, which is considered by some to be “settled law”. Can’t the SCOTUS majority overturn any previous SCOTUS decision if the right case is brought up before them? Is there anything stopping them from doing that? It seems to me that the term “settled law” has no real meaning and is just wishful thinking on some people’s part. Someone please fight my ignorance if I have that wrong. “Settled law” in general should not be used to discuss individual decisions of the Court. It’s much better to use the term when referencing underlying legal principles that are used to decide cases. The term is intended to indicate that there is no longer any serious dispute about the application of such a principle among the various courts who’s decisions are reported. For example, I would not say that _Mapp v. Ohio_ is “settled law”. Instead, I would say that the Exclusionary Rule is “settled law” in both federal criminal and state criminal law cases. No one seriously disputes that evidence obtained directly as a result of the violation of a constitutional right can be used in a criminal case, except under certain well-known exceptions. Exactly where the boundaries are can be still up for discussion, but generally speaking, no D.A./state prosecutor walks into court asserting that the drugs seized in the unconstitutional traffic stop should be admitted, without being able to reference one of the various exceptions. No court will refuse to apply the Exclusionary Rule because, hey, let’s just not say we did that today! Sometimes, of course, referencing a case can be done as shorthand for the underlying principles. A lot of people reference _Miranda v. Arizona_ by name, rather than saying something like “the principle that police must warn suspects under custody of their rights under the Fifth and Sixth Amendments is ‘settled law’.” But that would be unnecessary in the case of _Roe v. Wade_. It’s simply easier to say that the existence of a right to have an abortion is “settled law”. When you hear someone grilled on the question of whether or not _Roe v. Wade_ is “settled law”, that’s really a shorthand way of asking, “Judge, would you vote to overturn _Roe v. Wade_?” It’s not really “correct”, but it gets the point across. As for the “settledness” of various legal principles, some which were at one point hotly contested in the courts are now quite thoroughly settled, and have been for decades. Certainly, the right of the Supreme Court to declare state laws unconstitutional is settled, for example. So despite the fact that there are some things that might end up bouncing around for a while before agreement can be reached, it’s mostly the case that things which get decided, stay decided. For an example of something that is NOT what I would call “settled law”, see the recently determined right of same-gender couples to marry. ---
**Author:** ![JB99](https://avatars.discourse-cdn.com/v4/letter/j/439d5e/32.png) [@JB99](https://boards.straightdope.com/u/JB99)\ **Post date:** [October 1, 2018, 3:52pm UTC](https://boards.straightdope.com/t/what-does-settled-law-really-mean/822129/9 "2018-10-01T15:52:42Z")
Every time I’ve heard this used, it has been in the context of political doublespeak. I’ve never heard it used as an actual legal term. If a politician or judicial candidate says, “I consider X to be settled law,” it means that they don’t have the willingness or political capital to bother fighting the issue. He’s saying, “This matter is settled,” implying he won’t seek to overturn it. On the other hand, if someone says, “X is not settled law,” it means, “I’m willing to vote to overturn a decision, because I’m a party whore and I want donors to sponsor me.” ---
**Author:** ![race\_to\_the\_bottom](https://avatars.discourse-cdn.com/v4/letter/r/c4cdca/32.png) [@race\_to\_the\_bottom](https://boards.straightdope.com/u/race_to_the_bottom)\ **Post date:** [October 7, 2018, 6:10am UTC](https://boards.straightdope.com/t/what-does-settled-law-really-mean/822129/10 "2018-10-07T06:10:45Z")
I seriously doubt there is such a thing as “settled law”. The US constitution has not changed in any significant way which addresses the structure of the state since it was written to assure the support of slave owners and wealthy merchants. We managed to end slavery only through a brutal war, but that is about it. The constitution does not even explicitly guarantee equal rights for women, although it does guarantee “equal protection of the laws”, which has mostly been used to guarantee the rights of corporations. The Constitution is absolutely what the SC says it is. The only recourse is to amend, which is as close to impossible as these things get. If an amendment to guarantee equal rights for women fails, there is not much hope for anything else, except maybe an amendment to prohibit flag burning or Sharia law, stuff like that. There are sleepers out there which have been on the right wing fantasy list forever, but had no hope of getting anywhere. One is the Commerce Clause. Because the Constitution is hopelessly out of date as the basis for the workings of modern state, the Commerce Clause has been used by the Federal government to regulate all kinds of functions. Conservatives hate this and argue that it has been stretched beyond “original intent” . Not unrelated to this is the 10th amendment, which arguably severely prohibits the Federal government from encroaching on “states rights”. We are likely to see cases come before the SC which challenge Federal power along these lines. The majority of justices on the court likely are likely to rule against Federal power on a broad swath of issues, and it won’t be only on Roe. Labor legislation could be overturned because it interferes with the Contract Clause, for instance.