Precedent Matters at the Supreme Court—Until It Doesn't

A new abortion case raises an old question.

In May 2019, Justice Stephen Breyer chastised his five Republican-appointed colleagues for overruling one of the Supreme Court's own precedents. "I understand that judges, including Justices of this Court, may decide cases wrongly," Breyer wrote. "And I understand that, because opportunities to correct old errors are rare, judges may be tempted to seize every opportunity to overrule cases they believe to have been wrongly decided. But," Breyer insisted, "the law can retain the necessary stability only if this Court resists that temptation, overruling prior precedent only when the circumstances demand it."

It was an impassioned defense of the legal principle known as stare decisis, which is a Latin phrase meaning, "to stand by things decided." Alas, Breyer's own record somewhat undermined his lofty words. Breyer, after all, certainly knew a thing or two about overruling precedent, having voted to do that very thing himself in Lawrence v. Texas (2003), the landmark gay rights decision that overturned Bowers v. Hardwick (1986), which had upheld the power of state governments to prohibit "homosexual conduct." Bowers "was not correct when it was decided," the Court ruled in Lawrence, "and it is not correct today."

Precedent matters at the Supreme Court—until it doesn't.

Which brings us to abortion. Earlier this month, 207 members of Congress—39 senators and 168 representatives—filed a friend of the court brief urging the Supreme Court to take a second look at one of the most famous precedents in American law, the abortion rights-affirming decision Roe v. Wade (1973). "Stare decisis is not an 'inexorable command,' much less a constitutional principle," the congressional brief argues. "The Court has exercised [its] judgement to overrule precedent in over 230 cases throughout its history…. It is time for the Court to take [the abortion issue] up again."

The brief was filed as part of a case known as June Medical Services v. Gee, which the Court will hear later this term. At issue is a Louisiana law which requires physicians who perform abortions to have admitting privileges at nearby hospitals. In Whole Woman's Health v. Hellerstadt (2016), the Court struck down a nearly identical regulation from Texas on the grounds that it placed an "undue burden" on a woman's right to have an abortion.

But that was then. The Court's membership has changed in the intervening years and there is now perhaps a new appetite on the bench to rule in support of such abortion restrictions.

The 207 members of Congress are hoping for more than that. They hope that the Court will not only distinguish June Medical from Whole Woman's Health, but that the Court will take the present opportunity to revisit and overrule Roe itself.

That probably won't happen. As I've previously argued, "even those conservative justices who might want to see [Roe and related rulings] overturned might still prefer to see the precedents gradually weakened and narrowed over time, via a series of cases, rather than simply obliterated in one fell swoop."

At least for now, the Court's abortion rights precedents are likely to remain on the books.