Stare decisis solves a problem for the Supreme Court. It must be able to prove that it is an institution that operates across time and not just a collection of nine voices at one moment. The court creates continuity when it resists the urge to reverse past decisions.
Roe was reviewed in the 1992 Casey case and left mostly intact. Roe should not have been subject to the court’s norms for decades. This is because the Supreme Court doesn’t uphold settled law based only on what the majority believes now.
This is the subject of Chief Justice John Roberts’s disappointed concurrence. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.” The dissent of the liberals thrums with even deeper anger: “Here, more than anywhere, the court needs to apply the law — particularly the law of stare decisis.”
Stare decisis, as the justices know better than me, is not a law. Samuel Alito, in his majority opinion, dismissed it. “It is important for the public to perceive that our decisions are based on principle, and we should make every effort to achieve that objective by issuing opinions that carefully show how a proper understanding of the law leads to the results we reach,” he wrote. “But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”
Alito’s argument throughout the opinion is simple: The court may err. If it has erred it must correct it. Make all the fancy arguments about stare decisis you want, but if a decision is wrong, then it’s wrong, and it must be revisited. To take his perspective for a moment: There is something maddening about being appointed to a seat on the land’s highest court but told to leave standing the decisions you and four of your colleagues consider most noxious.
He is correct on some levels. Stare decisis makes little sense. The problem is that the Supreme Court without it makes little sense. It is a mere nine costumed political appointees seeking the votes they need to obtain the outcomes they want. The court’s mystique is fading the further we go down this road. There is no rule, really, that the Supreme Court must be obeyed as the final word in constitutional interpretation — that, too, is a norm, and one that the court has no power to enforce. If the Supreme Court has only the rules, there will soon be no Supreme Court.
Source: NY Times
