“The Couch” – Stare Decisis

(Editor’s note: This analysis is meant to deal only with the concept of Stare Decisis, not the complexities of the exact boundaries of the right to an abortion. That was discussed in this article.)

After a discussion with Jerry about abortion, Elaine decides to broach the topic with her new boyfriend Carl to make sure they are in agreement. He responds by telling her that he hopes there will eventually be enough justices on the Supreme Court who will overturn the decision in Roe v. Wade. Is it really possible that the Supreme Court can actually overrule itself?

Well, it’s not so simple.

While there is a long tradition that the Supreme Court will uphold its own prior rulings, there is no actual requirement that it do so. This principle is called “Stare Decisis,” or precedent, and is simply the concept that once a matter has already been decided by the Supreme Court it should continue to be ruled on in a similar way for the future. This is done to ensure consistency and predictability of how the law and the Constitution will be interpreted.

Lower courts are completely bound by Stare Decisis, and may not rule against any decision reached by a court above them. In the Federal court system there are 13 “circuits,” which each have numerous “district” courts (the lowest court) and a “Court of Appeals” (the intermediary court). All appeals from the Court of Appeals go to the Supreme Court (the highest court in the land). Once a higher court reaches a decision, all courts below it must abide by the ruling.

But the Supremes can, and occasionally will, go against their own prior decision. In actuality, this has only happened a few dozen times in the history of the Court. The famous case of Brown v. The Board of Education is, perhaps, the most well known example of the Supreme Court changing precedent when overturned its earlier decision in Plessy v. Ferguson in the 1896.

Much to Elaine’s chagrin, Carl is advocating for overturning a prior Supreme Court decision. This would be difficult for Carl to achieve and he could not do so by himself. Instead, Carl would have to rely upon elected officials to complete the process. First, there would need to be an open seat on the Supreme Court. Then, the President would have to select a nominee to fill that seat, one who is likely to overturn the precedent. Lastly, the Senate would have to confirm the nominee. The Senate has the right to ask the nominee questions and provide “advice and consent” on the nominee’s qualifications. While 60 Senators were once required to approve a Supreme Court nominee, only a simple majority of 51 (or 50 plus the vice president) is currently required.

Even assuming that enough new justices on the Court want to overturn a prior Supreme Court decision, there is still a long way to go. This is because the Court does not act on its own, instead it may only rule on a case that is presented. This means that the legislature must first pass a new law which conflicts with the prior ruling, then a citizen must file a case, and finally the case must make its way through the court system until it reaches the Supreme Court. This process can, alone, take years. So Carl’s hope for “someday” changing a law could really be quite a long time.

While it is possible for the Supreme Court to go against Stare Decisis, it is rare for it do so. Still, if Carl wanted to launch a campaign he could start by voting for Senators and a President who wants to overturn a particular decision.

And that would require some heavy lifting.