Roe v. Wade and other landmark rulings have recently been overturned by the Supreme Court, demonstrating important precedents are no longer reliable.
However, it is important to recognize the assertive majority also endorsed a new, covert method of overturning other decades-old legal precedents.
Any evaluation of the court’s adherence to earlier judgments should include a count of both judgments the court overturns and judgments it prevents from receiving further extensions.
Consider the case of Egbert v. Boule from the last term. This dealt with whether federal police may be held accountable for violating someone’s Fourth Amendment right against unjustified search and seizure.
In an earlier decision, the Supreme Court ruled police could be held accountable for making irrational seizures during “conventional” law-enforcement operations.
Additionally, the Egbert case had all the hallmarks of a traditional inquiry. Justice Neil Gorsuch “candidly” observed this in his separate conclusion.
The six Republican appointees emphasized they would “refuse” to accept this form of responsibility if they were asked to determine the previous case today. That put the justices in a difficult position since they had to decide whether to uphold or change the prior ruling.
In the end, the court made neither decision. The court claimed to recognize the earlier ruling, but it disregarded it.
No matter how similar the new environment was, the court ruled that the new factual situation was sufficient justification for delaying the adoption of the disfavored decision.
Precedent Law Not Being Followed
In several decisions last term, the court’s justices took a similar stance. This strategy is both imprecise and problematic. The new strategy of barricading precedent actually frustrates it while pretending to respect precedent.
An example of what happens when the Supreme Court bases a decision on a set of deliberately false factual assertions: reality finds ways to intrude and make fools of everyone. https://t.co/Tw2HXG5rxn
— southpaw (@nycsouthpaw) September 18, 2022
In other terms, Supreme Court rulings inevitably establish a legal precedent that goes beyond specific instances.
Due to horse-trading, negotiated settlement, or the mere limits of their will, legislators can effectively say “all this and no more.” However, the principle of stare decisis compels the court to extend or distinguish previous rulings in future instances in a principled way.
Or so we believed. Some members of the court’s freshly elected majority appear to have a different understanding of the purpose of the judiciary, one that empowers them to flatly fail to apply earlier rulings they disagree with.
“Almost everywhere I go, there’s someone who asks a question related to abortion.” @RepSpanberger says interest in the issue has shot up since the Supreme Court weighed in. Hear more on “Checks and Balance” https://t.co/HHbzBjsZ5v
— The Economist (@TheEconomist) September 18, 2022
From this point of view, we can actually identify one way in which the court’s decision to reverse Roe was doubly dismissive to stare decisis.
I was one of many who claimed the court’s earlier rulings granting same-sex couples the freedom to have sexual relations and be married backed an individual’s right to get an abortion.
The conservative majority made two responses. It initially urged it to accept those earlier judgments.
However, the majority also declined to apply those decisions without demonstrating how they could be consistent with the objectivist legal framework that the court claimed justified Roe’s reversal.
In other words, the court blocked access to its rulings on LGBT rights.
Concerns Raised Over Court Rulings
Many people undoubtedly appreciated the court’s revelation that it intended to keep those significant rulings intact on some level.
However, this pronouncement also seems to show the court is now at ease making decisions based only on its own power or will, not just on the basis of established legal principles.
That raises serious concerns. A fundamental aspect of the legal system is that judicial rulings must have greater weight than the way they resolved particular conflicts in the past.
A society of men, not laws, to use John Adams’ famous term, would result, if precedents were reduced, to nothing greater than the degree to which the present members of the court believe a previous decision was correct.
This article appeared in Powerhouse News and has been published here with permission.
