By DEACON MIKE MANNO, JD
Stare decisis is a Latin term for the judicial policy of standing by settled points of law, “let the decision stand.” It is what a layman might refer to as precedent, and although it is slightly different, that difference is what one might refer to as a difference without a distinction. But both concepts boil down to the principle that courts try to decide cases as similar cases that contained the same questions of law were decided.
The difference is in stare decisis once a court has enunciated a principle of law, it will adhere to it even when that particular point might later be questioned. The idea is that once a point of law is made, it is in the public interest to maintain that point so that the law is knowable and unchanging. Thus, people can comfortably go about their business in the certainty that a new court ruling won’t pull the rug out from under them.
Opinions about the application of the principle of stare decisis are most often concerned with issues concerning constitutional interpretations and individual rights. Rulings on mere statutes are not so critical to courts since erroneous or outdated decisions can be reversed by legislative action. Thus it is much harder to get the Supreme Court to overrule a constitutional or civil rights precedent than other cases.
How hard? One Supreme Court justice, Brett Kavanaugh, in a concurring opinion in a case involving whether or not Sixth Amendment guarantee of a trial by jury includes a mandate that state criminal trials must have juror unanimity to convict, laid out a pathway or roadmap on how it should be done. In it, Kavanaugh opined that while stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles” it does not stand in the way of the court overruling “erroneous precedents.”
One of those “erroneous precedents,” he said in a footnote, was Roe v. Wade.
The case under discussion had nothing to do with abortion, only jury unanimity. It arose from a Louisiana case in which one Evangelisto Ramos was convicted of second degree murder and sentenced to life in prison without parole. Ramos’ claim was that the jury convicted him by a 10-2 vote. Only Louisiana and Oregon have provisions for non-unanimous criminal verdicts; all other states and the federal courts require a unanimous jury.
In the case the court found that both states had fostered their system of non-unanimity as a result of racial animus. For Louisiana it went back to 1898 when the state was required to allow blacks to serve on juries. The state’s answer was to allow blacks to serve, but to put them into a minority position so they could undermine black jury participation by not requiring them to assent to the jury’s findings.
Oregon’s rule was adopted in the 1930s due to the influence of the Ku Klux Klan to “dilute the influence of racial, ethnic, and religious minorities on Oregon juries.” In a very mixed and confusing decision in 1972, the court upheld the Oregon plan in an opinion that basically said the Sixth Amendment only required unanimous juries in federal cases, but not in state courts.
So the question before the court revolved around a precedent that upheld a racially biased criminal procedure. Or as Justice Sonia Sotomayor put it: “While overruling precedent must be rare, this court should not shy away from correcting its errors when the right to avoid imprisonment pursuant to unconstitutional procedures hangs in the balance.”
In Justice Kavanaugh’s concurrence he gave reasons why some earlier precedents should be overruled and set out a three-pronged test to determine which should be:
“First, is the prior decision not just wrong, but grievously or egregiously wrong?. . . In conducting that inquiry, the court may examine the quality of the precedent’s reasoning, consistency, and coherence with other decisions, changed law, changed facts, and workability, among other factors.
“Second, has the prior decision caused significant negative jurisprudential or real-world consequences?…Importantly, the court may also scrutinize the precedent’s real-world effects on the citizenry, not just its effects on the law and the legal system.
“Third, would overruling the prior decision unduly upset reliance interests?. . . In conducting that inquiry, the court may examine a variety of reliance interests and the age of the precedent, among other factors.”
Interestingly, two conservative justices, Samuel Alito and John Roberts, and liberal Elena Kagan dissented and voted to uphold the precedent, finding that there was no current racial bias motivating the non-unanimity rule, and, Louisiana had already changed its law.
That created a lot of speculation on Justice Kagan’s motivation to uphold what was originally a racially biased procedure. Pundits quickly jumped on her decision to uphold stare decisis as a counter to what she believed to be the conservative effort to overturn Roe by using Kavanaugh’s “structured methodology.” I’m not sure that’s the way Kagan operates, but it does raise some interesting questions about some upcoming abortion rulings by the court.
There are two pending cases that may shed more light on Justice Kavanaugh’s methodology and Kagan’s dissent.
The first is another Louisiana case challenging a state law that requires doctors who perform abortions to have hospital admitting privileges at a hospital within 30 miles from the abortion clinic. A 2016 Supreme Court ruling struck down a similar law from Texas.
During oral argument in early March, the justices seemed divided, with Chief Justice Roberts seemingly concerned that the court might be bound to its 2016 ruling thanks to our old friend stare decisis, even though he had been in the minority in that case. The liberal justices, naturally, attacked the restriction as meant to limit a woman’s access to abortion rather than provide any meaningful medical protection.
So how does Justice Kavanaugh’s methodology figure into this? Is it enough to overrule the 2016 case?
But there’s another abortion case that may turn things on their heads. A case out of the Fifth Circuit basically upheld a ban on certain abortion procedures during the coronavirus pandemic. The circuit court ruling found that abortions are elective nonessential medical procedures and the risk to health-care workers is unnecessary and the personal protection equipment needed to provide abortions is needed elsewhere.
Roe, contrary to popular belief, did not hold that abortion was a constitutional right, only that women may seek some abortions under some circumstances. It created a balancing test, the state’s right to protect life against the woman’s right to privacy. That ultimately morphed into protections against “undue burdens” placed in the way of women who want an abortion.
Now, if the Supreme Court upholds the Fifth Circuit finding that elective abortion is nonessential, and overturns the 2016 Texas hospital privilege mandate, does that establish a precedent for the overturning of Roe v. Wade?
Maybe, maybe not. Smarter legal minds than mine can and will offer their opinions. It will make for an interesting debate. Pro-lifers, say your prayers!
(You can reach Mike at: DeaconMike@q.com and listen to him Thursday mornings on IowaCatholicRadio.com.)
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