Supreme Court Review

Article Title

Stare Decisis—Rhetoric and Reality in the Supreme Court


For a while it appeared likely that the hearings on the Supreme Court nomination of then-Judge Brett Kavanaugh would be remembered principally for focusing on the role of precedential constraint in Supreme Court decision making. Given that at least three and probably four Justices believed that Roe v Wade had been wrongly decided, and that none of those Justices had, unlike, Justice Kennedy, expressed a willingness to adhere to any of the important aspects of Roe, it seemed for a time that the nomination and the hearings would be situated in history as the locus of a senatorial and public conversation about the degree to which, if it all, a Supreme Court Justice should be willing to abide by earlier decisions that he or she believes mistaken. When, in response to questions posed to the nominee prior to the hearings by Senator Susan Collins, Judge Kavanaugh said that he considered Roe to be “settled law,” the stage was set for a public discussion and then Senate Judiciary Committee hearings about just what he meant by that phrase, about what it is in general for an earlier decision to establish settled law, and about the extent to which settled law should be overturned or modified in light of changes in social conditions, in national politics, in medical or other technology, or in the ideological makeup of the Court itself. Although this discussion of the place of precedent in Supreme Court decision making was launched both in the Senate and in public debate, that discussion came to an abrupt end. As we now know, the charges of sexual misconduct against now-Justice Kavanaugh, and his response to those charges, eventually overwhelmed all other considerations in the hearings of the Senate Judiciary Committee, in the debates in the full Senate, and in public discussion. Whatever value there might have been in a continued sustained public and senatorial conversation about the idea of precedent and its role in constraining Supreme Court decisions was, not surprisingly, overwhelmed by the tsunami of other and highly volatile considerations. The continuing political salience of abortion in general, and Roe v Wade in particular, as exemplified by Senator Collins’s initial concerns about Judge Kavanaugh, coincides with a seemingly divided and acrimonious Supreme Court in which the likelihood of compromise among the Justices seems ever more elusive. It is perhaps not surprising, therefore, that the question of precedential constraint on the Court still looms large, as it did for two cases in the 2017 Term in which the majority and dissenting Justices debated not only the merits of the substantive controversies that divided them, but also the extent to which Justices should subjugate their own considered views to the views of those who occupied the same seats in years past. That is the question of precedent, or, more precisely, of stare decisis, and the public, political, and judicial visibility of that question suggests that the time is ripe for a careful consideration of the extent to which, if at all, the Supreme Court is constrained by its earlier decisions, and the extent to which, if at all, the Court should in fact be so constrained.

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