“Stare Decisis” and the role of the Supreme Court

The truth about Roe v. Wade is that almost no constitutional scholar thinks it was rightly decided. The right to an abortion is found nowhere in constitutional text, structure, or history. Given that Roe is egregiously wrong, when the Supreme Court hears Mississippi’s challenge to Roe next month, the oral argument will center around two words: stare decisis.

Stare decisis is a Latin term that means “to stand by things decided.” The idea is that sometimes it is better that the law be settled than that it be settled correctly. Proponents of stare decisis argue that it promotes the rule of law and the perception that constitutional interpretation does not depend merely upon the composition of the Supreme Court bench. There is also an air of Burkean humility to stare decisis—the notion that current justices are not infallible and should adhere to the collective wisdom of bygone eras and of justices who came before.

Stare decisis traces its pedigree to the unwritten common law of England. Because there was no codified or positive law, judges fashioned the common law out of customs and traditions. William Blackstone thus explained that stare decisis played a role in judicial interpretation because judicial decisions were evidence of established customs. But even for Blackstone, stare decisis was not supreme—where a decision was “evidently contrary to reason” stare decisis principles did not apply.

The American legal system is one of positive or written law. Whereas the common-law courts of England discerned legal principles in the first instance, the role of U.S. federal courts is limited to faithfully interpreting the Constitution and democratically enacted federal law. As Justice Thomas has explained, stare decisis fits uneasily within this system of positive law. The justices swear to uphold and defend the Constitution of the United States, not previous judicial interpretations of that document. Further, blind adherence to prior precedent would leave in place the Court’s worst cases like Dred Scott v. Sandford (holding that slaves were property), Plessy v. Ferguson (upholding racial segregation under the “separate but equal” doctrine), and Korematsu v. United States (upholding the internment of Japanese citizens). As a result, stare decisis is not a binding rule, and in fact, the Supreme Court has overruled over 300 of its past decisions.

Still, the Supreme Court requires a special reason to overrule a past case—the fact that it is merely wrong is insufficient. In determining whether such justification exists, the Supreme Court looks to whether the decision is not just wrong, but grievously so; whether legal and factual developments have eroded the decision; and whether the decision has caused negative consequences.

Those factors demand overruling Roe. At the outset, that decision and its progeny, are egregiously wrong. The best evidence of this is that many abortion proponents don’t even argue that Roe was rightly decided, just that stare decisis requires the Court to continue in its error. Pro-abortion Yale law professor John Hart Ely, for example, famously derided Roe as “bad constitutional law,” and argued “never before” had the constitutional basis for a decision been “so obviously lacking.”

Roe, moreover, has profoundly damaged this country and its democratic processes. It removed from democratic debate an issue on which the Constitution is silent and placed that issue in the hands of an unelected judiciary. It has proven hopelessly unworkable. Even now, the federal courts of appeal are split over what Roe requires.

Legal developments have further eroded Roe’s logic. Under a conservative majority, the Supreme Court no longer invents rights out of thin air. Most importantly, our knowledge of unborn life has progressed. In Roe, the Court was told that “in early pregnancy . . . embryonic development has scarcely begun.” Fifty years of scientific progress demolishes that assessment. By just fifteen weeks, an unborn baby has a heartbeat, her internal organs are functioning, and she can move, yawn, and hiccup. A growing scientific consensus suggests that she may be able to feel pain as early as twelve weeks.

That fact alone should be enough to reverse Roe v. Wade. Respect for precedent is no barrier to a decision that is as poorly reasoned and harmful as Roe. This tragic precedent must go.