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In any Supreme Court confirmation hearing, prospective justices are inevitably asked whether they respect precedent and when it might be appropriate to revisit established case law. We’ve all seen this dance play out. The nominee tries to sound like she’s answering, or answering enough – without, of course, saying anything. The soon-to-be justice recites some canned, vaguely legalistic-sounding, non-committal bite to get them through the moment; survive and advance, right?
For example, Justice Brett Kavanaugh said during his 2018 confirmation hearings that Roe v. Wade “is important precedent of the Supreme Court that has been reaffirmed many times” and that generally precedent should not be overturned unless it is “grievously wrong.” Other justices have phrased it slightly differently over the years, but they all landed in more or less the same spot: we must respect precedent, except when some gauzy legal principle that only brilliant jurists can understand tells us that we must not.
But here’s the real answer to the question about when the Supreme Court will overturn precedent: whenever the hell five justices feel like it. Or perhaps, to be generous, I’ll phrase it this way: whenever five of them really feel like it.
Call me a Supreme Court skeptic, or cynic, or nihilist, even. It’s taken me some time to get here but I now embrace all those labels. The justices would have us believe they neutrally apply some set of objective legal criteria and the result falls where it will; balls and strikes and whatnot. Sorry, I’m out. It’s now clear how this really works: the justices start with their preferred policy or political outcome and then backfill the legal reasoning to get there.
It’s not hard, really. Just look at Dobbs, last week’s ground-shaking decision that overruled Roe and the nearly 50 years of precedent behind it. When you get to the part about when the Court should reverse its own precedent, the justices in the majority try to couch it in terms of very serious, very objective legal criteria. First on the list: “the nature of the Court’s error” in the initial case. Translation: we can overrule it if we don’t like it. Second criteria: “the quality of the reasoning” in the opinion at issue. Translation, again: we can overrule it if we don’t like it.
These aren’t meaningful standards, capable of any sort of reliable application. They’re fancified articulations of the principle that the Court can and will do what it pleases. If they were workable principles not guided by ideology or politics, then why did all the conservatives coalesce around one view while all the liberals landed on the opposite position? And why do we see that same split in virtually every major recent case? This isn’t a group of umpires calling balls and strikes. This is the players on the fielding team calling every pitch a strike and the players for the team at bat calling every pitch a ball.
This pre-deterministic practice entered the modern age in 2000 in Bush v. Gore, when all the conservative justices briefly turned against states rights, while liberals reversed their normal course and argued that state imperatives should reign supreme. Funnily enough, each side’s momentarily-adopted position would have given the presidency to the candidate of their obvious political preference. How remarkable.
To their credit, and perhaps due to frustration, the three liberal justices who dissented in Dobbs called this phenomenon right out: “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed.” That’s not to suggest liberals are above the fray and would never use legal jargon to justify their own preferred policy outcomes. See Bush v. Gore, above – and name one major recent opinion where the liberal justices have interpreted the law in a manner leading to a conservative policy outcome. But give the liberals credit here for explicitly naming a trend that has become impossible to sugar-coat.
Of course the Supreme Court can and sometimes must reverse itself. But comparisons between Dobbs and Brown v. Board of Education are not only inapt (and tinged with racial undertones) – they actually underscore how far off the rails the Court has now gone.
Brown, the 1954 decision that ended segregation in schools and reversed Plessy v. Ferguson’s “separate but equal” regime, was a unanimous opinion of the Court, joining Republican-nominated and Democratic-nominated justices together, conservatives and liberals aligned. Brown has stood the test of time, and is now universally regarded as the proper and necessary course of public action. Kavanaugh has called it the Supreme Court’s “single greatest moment,” and any sensible observer of any ideological persuasion would agree.
Dobbs, by contrast, cleaves a sharp division between the Court’s Republican-nominated conservatives and Democratic-nominated liberals. And it contradicts the policy views of nearly two-thirds of the American public. Comparing Brown to Dobbs isn’t just apples to oranges – it’s apples to Cadillacs.
By the way, as frustrated as many Americans are, calls to prosecute Kavanaugh and others for perjury based on their confirmation testimony are equal parts fantastical and misguided. None of the justices said they would not overrule Roe. They simply (1) acknowledged that Roe is (or was, then) precedent, a statement as self-evidently true as saying that gravity exists, (2) stated their position that precedent should be respected, except in certain extreme cases, and then (3) decided last week that Roe is one of those extreme cases. They might be guilty of aggravated pablum and first-degree flimflam, but nothing approaching a chargeable crime. (We also might spend a moment asking why the U.S. Senate has been so willing to accept non-answers from nominees of both parties for many decades running.)
People can and will disagree about whether the Court got it right in Dobbs. But let’s not act like there’s some magic formula here, that the justices in the majority were compelled to their conclusion by application of practical, articulable, and objective standards. The truth is, if you can get a majority of five justices who want to reach a certain policy outcome, they’ll get there, and it’s quite easy to fill in the legal yadda-yadda that precedes the bottom line.
So let’s call this decision what it is: the ultimate manifestation of the only rule that matters anymore on the Supreme Court – the Rule of Five.