Don’t panic over the conservative majority on the US Supreme Court

Judicial process offers a reassuringly dull perspective.
Judicial process offers a reassuringly dull perspective.
Image: Reuters/Toya Sarno Jordan
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This is a delightfully boring true story. It’s a staid tale of law and order, judicial restraint, binding precedent, and stability. And if you’re among those concerned about what the nomination of Brett Kavanaugh to the US Supreme Court could mean for Roe v. Wade, you may find some measure of comfort in what you’re about to read.

It’s unlikely that justices on the US Supreme Court—even a conservative bench—will hurry to overturn a major case like Roe v. Wade, which secured women’s access to abortions in 1973. That’s because of the bedrock legal principle of stare decisis, Latin for “to stand on the decision.” This principle, which requires judges to rely on precedent, ensures consistency, for better or worse. As the late justice Louis Brandeis explained in his since oft-cited 1932 dissent in Burnett v. Colorado Oil and Gas, “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.”

A foolish consistency?

The Supreme Court can, of course, overrule prior cases. It just doesn’t do it often, and certainly not without reason.

The idea of stare decisis may sound absurd. But it has a certain logic, to the extent that it respects separation of powers and ensures that the people, and judges, know what the law is. It’s the preferred method of maintaining order on all US courts, and no justice snubs the principle. “We do not sit,” justice Felix Frankfurter wrote in 1949, “like kadi under a tree, dispensing justice according to considerations of individual expediency.”

Judges don’t make the law; they leave that to representatives. They aren’t meant to be interventionists, except when statutes run afoul of the constitution. “[A] jurist is not to innovate at pleasure,” justice Benjamin Cardozo wrote in a 1921 essay on judicial process. “He is not a knight–errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles…to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life.”

Adherence to precedent “limits and shapes” how courts approach questions. Still, the law isn’t totally stiff.  The principle of stare decisis guides but doesn’t dictate, allowing for changes despite prizing judicial restraint.

The Roberts court

Under chief justice John Roberts, the Supreme Court has been particularly disinclined to overrule precedent. “The early Roberts Court has overturned prior court precedents at a lower rate than its predecessors,” writes Case Western Reserve University School of Law Jonathan Adler in Reason on July 8. The Warren, Burger and Rehnquist Courts repudiated cases at an average rate of 2.7, 2.8 and 2.4 precedents per term. By contrast, the Roberts Court only overturned an average of 1.6 precedents per term by 2010 and has since seemed to slow a bit, Adler notes.

Adler acknowledges that changing the composition of the court could shift this rate—but that’s far from certain. Justice Anthony Kennedy wasn’t overly preoccupied with precedent and tended to be the one to push reversals, explains Adler. The chief justice, however, prefers maintaining the status quo. “I think it’s unlikely that Justice Kennedy’s replacement is more willing to overturn precedent than Justice Kennedy was,” Adler writes.

Considering that Roe is status quo now, it seems unlikely that a court under Roberts’ continued influence will rock the boat, even if the new appointee is conservative. Kavanaugh, like many conservative jurists, says he opposes judicial activism. If he’s true to his word, that may work out okay for progressives in some controversial, settled cases, such as Roe.

It’s important to note, too, when Kennedy was appointed by Ronald Reagan, he was meant to fall clearly in the conservative camp. He wasn’t put on the bench to be the swing vote; he just evolved into that role. While justices no doubt have allegiances to political parties and their ideologies, it’s impossible to determine how any judge will decide on a particular case. People evolve over the course of their lifetime appointments, and their perspective from the bench can change as the gravity of the matters they handle becomes more apparent. Even Antonin Scalia made 135 liberal decisions while on the Supreme Court, as David Dorsen, an attorney and author of the 2017 book The Unexpected Scalia, notes in the Washington Post (paywall).

Broad strokes

Politicians, media, and activists tend to characterize legal matters in broad strokes, discussing  a range of implications of a Supreme Court case. But judges decide as little as they can, actually. Each case presents with a specific fact pattern, which makes it possible to decide most matters on very narrow grounds.

In June’s Masterpiece Cakeshop v. Colorado Civil Rights Commission decision, for example, the majority found for a baker who refused to make a cake for a homosexual couple’s wedding on religious freedom grounds—not because the identity-based refusal was acceptable. The majority based its conclusion on the Colorado Civil Rights Commission’s “aggressive” statements about the baker’s faith. The decision is limited and contains a defense of gay rights.

A superficial glance at the case, or headlines about it in the media, could lead a reader to conclude that the high court supports discrimination against gay couples and that their civil rights are jeopardized. But a deeper read reveals that the justices stand by their 2015 decision in Obergefell v. Hodges to recognize same-sex unions. The opinion confirms Obergefell, though the specific decision finds for the baker on a set of facts that don’t have a wide application or major implications.

So many rules

Apart from the justices’ general reluctance to overturn cases based on principles of judicial restraint, there are practical matters to consider. Judges mull a precedent’s workability, society’s reliance on a particular case, the potential effects of abandoning the decision, and the matter’s legitimacy.

Workability refers to how a case is playing out on the ground. If it generates inconsistent applications, fosters unclarity and uncertainty, or proves difficult to manage, it’s unworkable and possibly worth overturning.  “A precedent is more likely to be overruled if it announced nebulous, vague, judicially crafted standards not well-rooted in legal texts or traditions,” explains John Walker, Jr., a senior judge on the Second Circuit Court of Appeals, in a 2016 Stanford Law School commentary.

For example, the attorneys for Brendan Dassey, a teen convicted of murder based on a confession, argued that his admission of guilt was coerced by police, and that the judge in the case didn’t correctly weigh factors, like his youth or intellectual deficiencies, in a test about admitting such evidence. They also argued that his was a representative case—an example of how judges across the country misapply the confessions test generally when it comes to kids. And so they wanted the court to review Dassey’s conviction not just for him, but because coerced confessions are problematic and this would clarify the law for all judges. With no written explanation, the court declined review, presumably because it didn’t conclude that the current confession test “generates inconsistent applications” or “fosters unclarity and uncertainty.”

Judges also inquire into reliance. Would overruling create special hardships, making repudiation of the case an injustice? Walker notes that in the 1992 case Planned Parenthood v. Casey, justices emphasized the role of reliance interests when deciding not to overturn Roe. The majority wrote, “For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” Essentially, access to abortion had become a concept entrenched in American life and the justices were disinclined to turn back time.

Courts also consider whether the culture and subsequent cases have moved the law in a different direction, thus rendering the precedent “a doctrinal anachronism discounted by society.” When the 1944 case justifying Japanese internment during World War II, Korematsu v. US, was finally overruled in the June Trump v. Hawaii (pdf) decision, it was a belated technicality, not a matter of practicality. The case had already long been considered a stain on the high court’s record, not law that ought to be followed. As Justice Sonia Sotomayor wrote in her dissent in the travel ban case, “Today, the Court takes the important step of finally overruling Korematsu…This formal repudiation of a shameful precedent is laud­able and long overdue.”

Another important consideration is legitimacy, Walker notes. Courts don’t overrule precedent cavalierly, because it undermines their prior rulings. The judge explains that when the high court declined to overturn Roe in Casey, it noted the “intensely divisive controversy reflected in Roe.” Having reached its conclusion and interpreted the Constitution as allowing abortion access, the Supreme Court was not at all inclined to undermine its prior ruling.

Walker explains that courts do not analyze these factors mechanically. “None is treated as dispositive; none is identified as essential; the relative weight of each is unclear,” he writes. But judges take them all together to test whether it makes sense—from a variety of perspectives—to overturn precedent.

What about justice?

Supreme Court opinions rarely cause sweeping changes, and that’s by by design. Yet even the most conservative of judges, like Clarence Thomas and the deceased Antonin Scalia, will take an active stance (pdf) when justice demands it.

Take, for example, Holder v. Hall, a 1994 case in which black voters in Bleckley County, Georgia, challenged a local provision that they argued had been adopted to limit their political influence, in violation of the Fourteenth and Fifteenth Amendments. Thomas, joined by Scalia, wrote in his 1994 concurrence:

I cannot subscribe to the view that in our decisions under the Voting Rights Act it is more important that we have a settled rule rather than the right rule. When, under our direction, federal courts are engaged in methodically carving the country into racially designated districts, it is imperative that we stop to consider whether the course we have charted for the Nation is the one set by the people through their representatives in Congress. I believe it is not.

The myth of revolutionary justices

Stare decisis is just a principle, and the Supreme Court can choose to find constitutional grounds for overruling a prior decision. But the justices aren’t usually eager to do it. Predictions like those from CNN’s Jeffrey Toobin that abortion will be illegal in 20 states within 18 months of Justice Kennedy’s retirement are alarmist.

That said, it is possible that Kavanaugh, if he takes the high court bench, could seek to weaken abortion access. In an address published in the Notre Dame Law Review in 2017, Kavanaugh showed a willingness to limit Roe, asking, “What regulations of abortion are permissible?” He answers his own question with these suggestions: “Informed consent, waiting periods, partial-birth bans, doctor licensing, parental notice, and the like.” But he may not have the opportunity to approve added obstacles to abortion. First, the “right” case would have to come up, and the court would need to agree to review it. And it’s not clear the cautious Roberts court is eager to take up the controversial question of abortion, given Roe is settled.

More than their liberal colleagues, conservative justices who claim to disdain judicial activism can’t easily justify major changes. Kavanaugh probably doesn’t represent a significant threat to Roe or other settled law, though it is tempting to reduce the legal system to a one-man revolution for simplicity’s sake.

The law isn’t simple, however. Nor is it revolutionary. After all, it is designed specifically to maintain order and not shake up the nation. And judges on the high court are the most lawyerly of all lawyers, obsessed with rules about rules, how to reason, and preservation of a reliable system.

That’s boring. But it also means that we, the people don’t have to perpetually panic about the future of our rules.