How About Stare Decisis-lite at the Supreme Court?

These are — to say the least — interesting times at the Supreme Court.

During the first fifteen years of the Roberts Court, the justices produced their fair share of controversial decisions, including those concerning gun rights, pleading standards, the Voting Rights Act, campaign finance regulation, and gay rights.

And it appears that things are escalating quickly. Over the past two terms, the Supreme Court did away with constitutional protection for abortion, limited administrative agencies’ ability to implement major new policies, and declared that the traditional approach to affirmative action violates the Fourteenth Amendment to the U.S. Constitutional and Title VI of the Civil Rights Act of 1964.

This turn of events has angered progressives. Professors and pundits churn out article after article insisting that the Supreme Court is in the process of undermining its legitimacy because Republican-appointed justices are bad-faith actors hellbent on imposing their political will on the nation. Some members of the credentialed class are even clumsily attempting to effect a second “switch in time” by demanding radical responses to this perceived crisis, such as packing the Supreme Court with Democratic Party-approved jurists or stripping the Supreme Court of its ability to hear certain types of cases. 

Although there are reasons to be concerned, the rhetoric aimed at the conservative justices is a bit out of step with reality. There has been a paradigm shift in constitutional interpretation at the Supreme Court. The judicial philosophy favored by the Warren Court and described in John Hart Ely’s “Democracy and Distrust” (a jurisprudence supporting judicial intervention where the political process is not functioning properly) has been pushed aside for originalism (a doctrine positing that courts must interpret constitutional language according to its public meaning at the time of its ratification).

No one should be shocked that well-established precedents are falling by the wayside at this point. Precedents decided under the former doctrine are going to get overturned as the latter approach becomes more dominant at the Supreme Court—just as precedents decided using the approaches favored prior to the Warren Court began falling about 70 years ago. 

Those fighting the jurisprudential tide do, however, raise a vital question: If the Supreme Court got things wrong before, why should anyone assume that it got them right this time around?  Those  cheering on the current sea change contend, of course, that the legal reasoning of the newly issued opinion trounces that of the discarded decisions. But such arguments fail to address the legitimacy crisis that seems to be building.

The general public — whose faith in the Supreme Court has wavered a bit recently — rarely devote time to read the new opinions in their entirety, much less compare them closely with overturned jurisprudence.

All that is likely to reach their ears is a claim that boils down to “back then we were wrong, but now we’re right” — a contention about as convincing as “yesterday I was lying, but today I’m telling the truth.” The Supreme Court might want to take steps to shore up its position as the head of the “least dangerous” branch of the federal government before things get completely out of hand. 

Although much discussed in the press, stare decisis (a Latin term meaning “to stand by things decided”), probably is not the answer. Meant to promote stability and protect the institutional legitimacy of the courts, the doctrine encourages the Supreme Court to follow “the principles, rules, or standards of its prior decisions . . . absent exceptional circumstances.”  Stare decisis is, at bottom, a mistake canon — a way for the courts to deal with a decision that might well have been decided or reasoned incorrectly. And, as many have noted, a robust version of stare decisis works a lot better in the context of statutory law than it does in the context of constitutional law.

When the Supreme Court misconstrues statutory language, Congress can “reverse” that decision simply by amending the statute in the normal course of the legislative process. The same does not hold true when the Supreme Court erroneously constitutionalizes an issue. Such a decision cannot be overcome by statute, and the U.S. Constitution is very difficult to amend. The issue will almost certainly be kept out of the political process, where policy questions properly belonged, until the Supreme Court changes its mind again. 

There are better ways to address the policy concerns addressed by stare decisis, including a doctrine urging the Supreme Court to — where possible — keep the principle, rule, or standard in an overruled constitutional decision “on the books” under the federal common law until Congress decides to act. The “where possible” probably needs unpacking.

The doctrine would apply only where Congress would have the power to pass a statute codifying the principle, rule, or standard in the overturned constitutional case. In practice, the doctrine would operate only where the Supreme Court mistakenly constitutionalized or over-constitutionalized an issue.

For example, because Congress has the power to forbid state actors from placing an undue burden on abortion access, the Casey framework would remain in place under the federal common law after the Dobbs Court decided that the Due Process Clause of the Fourteenth Amendment does not protect the right to an abortion.

It has no application where the Supreme Court limits or eliminates Congress’s ability to regulate an issue because the principle, rule, or standard in the overruled case would become actively unconstitutional. Thus, the doctrine could not save the status quo if the Supreme Court decides to limit the scope of the Commerce Clause or to provide commercial speech full constitutional protection under the First Amendment. 

Designed to push as many policy questions as possible to a political process while avoiding as many shocks to the system as possible, my proposed doctrine should address concerns about stability and institutional legitimacy without freezing an ill-reasoned decision in place. An issue would be returned to a political process because Congress can override the federal common law through the normal legislative process.

At the same time, my suggested approach would promote stability because the federal common law binds both federal and state courts, so the established principle, rule, or standard would remain the law of the land until Congress acts.  It also should foster institutional legitimacy because the Supreme Court would acknowledge its fallibility and defer to its co-equal branch of government regarding whether, how, and when to deal with the judiciary’s mistake. In other words, the hope is that a little humility from those at the apex of the judicial system might go a long way, especially in an era of rising populism.

This suggestion is unlikely to please activists who care deeply about goings-on at the Supreme Court. And there are valid criticisms. Progressives may accurately note that, because the issue of abortion rights has already been sent back to the states, my proposed approach is too little, too late. They also might understandably be put off by a doctrine that could eventually preserve gun rights.

Conversely, conservatives would be correct to emphasize that, in practice, the approach will end up protecting mostly liberal or progressive policies, given the political orientation of the Supreme Court over much of the last half of the previous century.  

But so what? An argument does not have to convince everyone to be useful. Any approach that allows justices more leeway to de-constitutionalize an issue without de-federalizing it may help persuade those not totally committed to the Democrats’ or the Republicans’ party line that the Supreme Court has not become another political branch of government and, in fact, is willing to defer to the most political branch, the legislature, on important policy decisions. And that may be all that can be — or need be — done at this point. 

Michael J. Scanlon is a lawyer and graduate of Stanford Law School.