When the Supreme Court decides how the law, and the Constitution, should be interpreted, that interpretation becomes a precedent. Once that judicial precedent has been set, it's understood that the interpretation and its reasoning should be applied to similar cases in the future. So why might the Supreme Court reconsider its own precedent? And what happens when a precedent is modified, or overruled?
We talk to Nina Varsava, a law professor at University of Wisconsin, Madison who studies judicial precedent, and wrote the article, "Precedent on Precedent," and Rachel Rebouche, a law professor at Temple University who specializes in family law, health care law, and comparative family law, and has written about the potential impact of overturning Roe v Wade.
Transcript
Nick Capodice: You have to be careful with the word precedent. Hannah It starts to turn. What's the word for that thing? When you say it over and over and over again, it doesn't mean sense anymore. You're like, precedent, precedent, precedent.
Hannah McCarthy: I don't know the word for that thing, but I know what you're talking about. But that's not why you got to be careful with the word precedent.
Nick Capodice: No, no.
Hannah McCarthy: You got to be careful with the word precedent because of the word precedents. And presidents.
Nick Capodice: Presidents Day dead.
Hannah McCarthy: Presidents dead. Precedent.
Nina Varsava: Mr. Speaker.
Hannah McCarthy: Precedent.
Nick Capodice: The president of the United States.
Hannah McCarthy: This is Civics 101. I'm Hannah McCarthy.
Nick Capodice: I'm Nick Capodice.
Hannah McCarthy: And today we are talking about judicial precedent, how the Supreme Court interprets the law and how that interpretation becomes an authority and guidebook for everyone else, and what happens when that precedent is overturned. Now, we decided to do this episode because of something that's happening right now in our Supreme Court. It's June 20, 22, and earlier this year, a draft opinion in a Supreme Court case about abortion access. Dobbs v Jackson Women's Health Organization was leaked to the public.
Archive Audio: And leaked to the public late yesterday. Suggest that by this summer, a majority of the justices will overturn Roe versus Wade.
Hannah McCarthy: That opinion lays out a justification for overturning Roe v Wade, the landmark case in 1973 that established the right to abortion. By the time you hear this episode, a final decision may have been made in this case. But no matter the final decision, this draft opinion marks an historic moment in Supreme Court precedent. In this episode, we're going to talk about how Supreme Court precedent has worked throughout history and why precedent is so important. We'll also talk about how the Supreme Court has treated the precedent established in Roe v Wade in the years that followed. And we will have a special follow up episode that looks at how precedent is treated in the jobs opinion.
Nina Varsava: The doctrine of precedent refers to the norm of treating like cases alike.
Hannah McCarthy: This is Nina Varsava. She's a law professor at the University of Wisconsin, Madison. She studies judicial precedent and is the author of the 2020 article Precedent on Precedent take something like constitutional rights to life, liberty and property, for example. Now, by itself, that's pretty abstract, right? So how do we know that this actually means we have a right to a fair and speedy trial with the right to equal education?
Nick Capodice: Yeah, the right to marry someone regardless of their race or gender. All of these things we've seen and talked about in landmark Supreme Court cases over the years.
Hannah McCarthy: Right. These rights in our Constitution are given their meaning by the Supreme Court. Who decides what the law actually means in practice? They establish a precedent, and that precedent is the foundation for everything that follows. And I'm just going to go ahead and put it out there right now. This episode is full of legal jargon, but it's so worth it. Here is your first legal term for today. Stare decisis.
Nina Varsava: Stare decisis is short for a longer Latin phrase. That means stand by things decided and don't disturb settled points.
Hannah McCarthy: Basically, stare decisis is the practice of using precedent. When you get a case about, say, freedom of speech, you look at how similar cases were decided and use that to inform the decision in the new case.
Nick Capodice: Is this like reference to or alluded to anywhere in the Constitution? Because I don't think precedent or stare decisis is in there anywhere.
Nina Varsava: So the Constitution doesn't explicitly say anything about precedent. But some commentators have argued that the doctrine of precedent is constitutionally required.
Hannah McCarthy: Like a lot of things with the Constitution, it's up for interpretation.
Nina Varsava: So some believe that Article 3 of the Constitution, which concerns the judicial power, implicitly require stare decisis. And then some commentators have argued that following precedent is a requirement of constitutional due process.
Hannah McCarthy: Basically, your constitutional right to experience the law fairly and consistently, no matter where you.
Nina Varsava: And due process might also require courts to protect reasonable expectations. So people form expectations based on how past cases were decided. And then if courts upset those expectations, decisions are unpredictable, then that would violate the right to due process.
Hannah McCarthy: And that makes sense, right?
Nick Capodice: Yeah.
Hannah McCarthy: You are going to govern your life based on how rules have been set down in the past. Think of an open book test. For example, if a teacher has said all tests in this class will be open book and every test before the one you're about to take has been open book, you have the expectation that that next test is also going to be open book. And then, let's say the day before the test, the teacher says, Oh, no, sorry, this is not an open book test. That teacher has set an expectation and has now completely changed that expectation.
Nick Capodice: Yeah. That sounds demonstrably unfair.
Nina Varsava: Yeah. So once the Supreme Court sets a precedent, whether it's a new precedent on a new issue or it is a precedent overruling previous cases, it affects how other courts in the US will decide similar cases and in turn how people will structure their lives and conduct themselves. So all of the other courts in the US, both state and federal, are strictly bound by the US Supreme Court's cases on matters of federal law.
Hannah McCarthy: This is one way that precedent works, and it's called vertical stare decisis, and it's just what it sounds like. Decisions at the top flow downward.
Nina Varsava: An example is the case of Obergefell v Hodges decided in 2015. In that case, the Supreme Court determined that there's a constitutional right to same sex marriage. And in practical terms, this means that no government may create laws that ban or limit same sex marriage.
Speaker3: Profound. The 5 to 4 vote in many ways, reflecting the huge societal shift of the last 20 years.
Nina Varsava: So that decision, of course, had and continues to have a significant impact on many people's lives. So in practical terms of a state now enacts a law trying to prohibit or restrict same sex marriage, that law would be invalid.
Nick Capodice: But we've read a lot of Supreme Court decisions over the years, and they can be dozens of pages long and you've often got multiple opinions, concurring and dissenting. How do you figure out which part of the decision is the precedent?
Nina Varsava: If there is a majority opinion, then the standard view is that whatever is binding in the precedent is contained in that majority opinion.
Hannah McCarthy: Now, most cases are decided by a simple majority where the justices agree both on the question being asked and how the law applies to it. The interpretation in that simple majority becomes the precedent. So Obergefell v Hodges is one example of this. A54 majority of justices agreed that people have a constitutional right to same sex marriage, and therefore, in the case before them and in all other cases like it, a state could not pass laws that banned same sex marriage.
Nick Capodice: Yeah, but Nina just said if there is a simple majority.
Nina Varsava: Some cases don't have a majority opinion at all.
Hannah McCarthy: These are known as plural decisions. For example, four justices say a law and any law like it is in violation of the Constitution. Another four justices say a law is not in violation of the Constitution. And one justice has a concurring opinion. For example, I agree that this law is in violation of the Constitution, but just this one law, not all other laws like it in some plural decisions which part of the opinion is precedent is less clear. And I should say even justices on the Supreme Court disagree on how precedent should work in plural decisions. Sometimes this means that lower courts end up disagreeing on how to interpret the decision creating circuit court splits, and the case gets punted back up to the Supreme Court.
Nick Capodice: But in an ideal situation, the Supreme Court has issued a clear decision, and that decision becomes the precedent.
Hannah McCarthy: Yes. And vertical stare decisis means that when similar cases come up, the lower courts look to that decision and say, hey, this is what the Supreme Court said.
Nick Capodice: All right. This episode is happening at a time when the Supreme Court seems poised to overturn one of its own decades old precedents. There's no court higher than the Supreme Court. So obviously vertical stare decisis doesn't work there.
Hannah McCarthy: Right. So the way the Supreme Court treats its own precedent is horizontal stare decisis.
Nina Varsava: So there's no court that creates decisions that the Supreme Court would be strictly bound by. But it does recognize the precedential force of its own decisions.
Nick Capodice: Now, that feels a little more wobbly. However, from what I remember throughout history, the Supreme Court usually takes its own precedent pretty seriously. Nearly every Supreme Court case you read about is referring back to previous decisions as a guideline. So questioning themselves all the time would not only be counterintuitive, but also somewhat undermining.
Hannah McCarthy: Yeah, there have been over 25,000 Supreme Court decisions in the history of our Supreme Court, and only a few dozen of those precedents have been overturned.
Nina Varsava: The courts often modify precedent, which means that they're making some adjustment to a past decision, or they're updating the doctrine without completely discarding that previous doctrine. The Supreme Court, typically, and for good reason, has been wary of overturning precedent. So the doctrine of precedent serves several important purposes. For example, it helps to maintain the credibility of perceived legitimacy of the court. And the idea is that if the court adheres to previous decisions, even when the composition of the court has changed, then the court acts as. Going to seem to act as a law playing institution rather than a political or ideological one whose opinion vacillates with the politics or personal morality of the justices.
Nick Capodice: Well, that makes sense if you base all of your power and credibility on doing one thing really well. You don't really want to be in the habit of saying, Well, sometimes they did this well, but this other time I was actually completely wrong.
Hannah McCarthy: Yeah, exactly.
Nina Varsava: So the court's legitimacy might be degraded by a drastic shift in the doctrine concerning fundamental rights, and that might mean that its decisions aren't entitled to as much respect. And then another value underlying star decisis is fairness and equality. So the idea is that it's unfair for similarly situated people to be treated differently under the law over time.
Hannah McCarthy: This gets us back to due process. If the law is constantly up for question, then where you are in space and time can make a big difference in how the law is applied to you.
Nick Capodice: Okay, so overturning precedent is something that is done rarely and with good reason. So why would the Supreme Court ever do it?
Hannah McCarthy: We'll get to that after a quick break.
Hannah McCarthy: So there is a precedent for overturning precedent. Over the centuries, the tens of thousands of cases, the Supreme Court has developed a method for reevaluating its own reasoning. If the court is going to take the step to undo a decision it's already made, especially one that has informed dozens, if not hundreds or thousands of cases across the country, it has to make a pretty good argument for doing so. There are a few factors that the court uses when evaluating precedent. This is Nina Varsava.
Nina Varsava: One, whether the past decision has proven unworkable, so basically that it's impractical and feasible to implement or follow. And then to the degree to end way in which people and society have relied on the decision. Three Whether subsequent changes in law have made the decision a doctrinal outlier so that it just doesn't really fit with other legal doctrines, and for whether facts or our understanding of them have changed such that the holding of the precedent isn't applicable anymore or isn't any more justifiable based on what we now know or understand the relevant facts to be.
Hannah McCarthy: Let's break that down. Is the law impractical or unfeasible? For example, the Supreme Court once had a decision that said that sometimes the federal minimum wage applied to state employees, but not always.
Nick Capodice: This sounds really complicated.
Hannah McCarthy: It was so complicated, in fact, that lower courts couldn't figure out how and when states had to follow the minimum wage requirement or not. And a few years later, the Supreme Court reevaluated and decided.
Nina Varsava: Yeah, this is not workable.
Nick Capodice: Nina also mentioned that the court considers how people in society have relied on a precedent. What did she mean by that?
Hannah McCarthy: This is known as a reliance interest.
Nina Varsava: So they ask, to what extent did people rely on the previous decision or did society rely on it in order to plan their lives? And this kind of interest is also one of the main purposes of the whole doctrine of stare decisis. So protecting people's expectations, making the law predictable.
Nick Capodice: So if the court is considering whether a precedent should be overturned, it should also account for how overturning that precedent may impact people's lives.
Hannah McCarthy: Right. And finally, have facts changed or was there an error in reasoning? I mean, let's take the infamous precedent set by Dred Scott v Sanford. In that decision, the Supreme Court said that African Americans, whether they were free or enslaved, were not citizens of the United States. The decision was highly controversial at the time, and in some ways it helped to galvanize a political movement that eventually led to the Civil War and the abolishment of slavery. Now, later on the 13th and 14th Amendments made the precedent obsolete. It no longer fit with the ideology of the country as a whole. And beyond that, the Supreme Court acknowledged that the reasoning behind that decision was so wrong as to be anti cannon, anti precedent.
Nick Capodice: Now, Nina said that the Supreme Court doesn't often overturn precedent completely, but it modifies it.
Hannah McCarthy: And it just so happens that Roe v Wade is a perfect example of this. A few decades after Roe v Wade, the precedent it established was taken up by the Supreme Court, reconsidered and modified.
Nick Capodice: And if people want to do a deep dove into Roe v Wade, we did a whole episode on it that we just rereleased a couple of weeks ago. You can find it in our show feed. But real quick, can can you remind us all what precedent was established in Roe v Wade?
Archive Audio: Good evening. A landmark ruling the Supreme Court today legalized abortions. The majority in cases from Texas and Georgia said that the decision to end a pregnancy during the first three months belongs to the woman and her doctor, not the government.
Hannah McCarthy: Roe v Wade said that in certain circumstances, someone's ability to get an abortion is inherent to their right to life, liberty and property. And the ability to make that decision is inherent in their right to privacy, which had also been located in the Constitution. And the decision said that those circumstances were determined by viability. Basically, how far along a pregnancy was determined by the trimester system.
Rachel Rebouche: In the first trimester, says Roe. It's the patient in consultation with her doctor, who makes a decision whether or not to carry a pregnancy to term.
Hannah McCarthy: This is Rachel Rebouche.
Rachel Rebouche: In the second trimester. The state's interest becomes bigger.
Hannah McCarthy: She's a professor of law at Temple University, where she focuses on reproductive health, including prenatal genetic testing, surrogacy and abortion law.
Rachel Rebouche: There are certain restrictions that the state can impose and by the third trimester, past viability. Really, then the state can do a lot to restrict choice.
Hannah McCarthy: What's interesting about Roe is that the court justified this precedent that abortion was part of someone's 14th Amendment rights by referring to other 14th Amendment cases.
Rachel Rebouche: Earlier in the 20th century, the court had held that the 14th Amendment due process clause protects the rights of parents to dictate the education of their children. And why? Because the rights of parents to decide fundamental issues dictating how they raise children is older than the Bill of Rights. The same with marriage. There were the Constitution doesn't say marriage, but as part of this. Life, liberty and property. Part of your liberty is that the state cannot restrict your right to marry without a really, really good reason. They can't do it based on race in.
Nick Capodice: Loving, loving as in loving Virginia, which said that a state couldn't prohibit interracial marriage, which we've also done an episode about.
Rachel Rebouche: I can't do it because you're an inmate. They can't do it because you failed to pay child support.
Hannah McCarthy: And not only was Roe informed by other 14th Amendment cases more broadly, it was also informed by 14th Amendment cases that had to do with reproductive health.
Rachel Rebouche: Ten years before Roe was decided, the court had also decided a couple of cases that determined that the same set of values under the 14th Amendment protected the right to contraceptives. So first, it was striking down a Connecticut law that restricted the way in which married people could use contraceptives or obtain contraceptives, and then in the next case, striking down a Massachusetts law that forbid unmarried people from using contraceptives. So those are some examples of the types of rights that the court had held, that the 14th Amendment protected rights that are important to intimacy and relationships, family, procreation, reproduction.
Hannah McCarthy: The precedent in Roe v Wade has been held up to scrutiny, and it has been modified, for example, in a case from 1992 called Planned Parenthood v Casey, Pennsylvania passed a new law that restricted abortion by creating additional requirements that someone had to meet to access an abortion like a waiting period. Spousal notice, parental consent for minors. The Supreme Court took up the case to figure out if the precedent in Roe v Wade was still workable. The court could have completely overturned Roe v Wade, but it didn't.
Archive Audio: David Souter and Anthony Kennedy wrote. After considering the fundamental constitutional questions resolved by Roe, we are led to conclude this The essential holding of Roe v Wade should be retained and once again affirmed.
Rachel Rebouche: The court surprised some. Then it did not overturn Roe. What it did is it said we announce a new test essentially that states have to pass if abortion restrictions are going to stand. We took the trimester system. That's not workable moving forward. Viability is changing. Science is changing. Technology is changing. Change, change, change. And instead what we're going to do as a court is we're going to ask, does the state restriction impose an undue burden on the right to abortion that, you know, open the door for a lot of restrictions? A lot, a lot a lot of restrictions. In that same case, the Supreme Court upheld every Pennsylvania restriction except for the requirement that a woman notify her spouse before she had an abortion, that they upheld the informed consent and reporting requirements and a waiting period and you name it.
Hannah McCarthy: However, the Supreme Court still felt that the core of Roe v Wade, that access to abortion was a protected right, should still stand.
Nina Varsava: So in Casey, the court reason that people were relying on Roe and that the reliance was important and widespread of kind of societal reliance.
Nick Capodice: So the court went so far as to tweak the precedent of the landmark case of Roe v Wade, but stayed in line with the core constitutional question that Roe answered. Access to abortion is federally protected and based on precedent that came before.
Hannah McCarthy: Which is important not just to constitutional interpretation, but to the authority of the Supreme Court itself. The court is the final arbiter of the Constitution. The court tells us what the Constitution actually says to overrule one of those interpretations, a seminal landmark interpretation, no less, is to say that the court was very wrong about something very significant. And in this case, it is to say that they were wrong not so very long ago. The court is hesitant to do such a thing and with good reason.
Nick Capodice: So precedent is really twofold, isn't it? It's about establishing a through line of meaning in the Constitution, and it's about affirming that the court was correct the first, second and third time they establish that meaning.
Hannah McCarthy: Yes. And 20 years after Roe and Planned Parenthood v Casey, the court maintained that core precedent, that precedent based on precedent. But 50 years later.
Archive Audio: Politico report said that shortly after the court heard oral arguments in December about a mississippi law banning abortion after 15 weeks, five Republican nominated justices voted to overturn Roe. That would be a seismic shift, both legally and politically. 26 states are. Certain we're likely to.
Nick Capodice: Yeah. We are going to have to figure out what that actually means for precedent.
Hannah McCarthy: Yeah, we sure are. Based on the precedent set in this very episode, that's in a special bonus episode of Civics 101.
Nick Capodice: Today's episode was produced by Christina Phillips with help from Hannah McCarthy and me, Nick Capodice. Our staff includes Jacqui Fulton, and Rebecca Lavoie is our executive producer. Music In this episode by wax lyricist, Holizna, Chris Zabriskie. Des Moran, Scan Globe, Nul Tiel Records and Rocky Marciano, if you like Civics 101 and you get something out of it and are in the position to put something back in, please consider donating to our show. We're a nonprofit, so people like you are literally the only way we can exist. Thanks. Civics 101 is a production of NHPR New Hampshire Public Radio.