With Roe v. Wade Overturned, Understanding Constitutional Precedent
* This article was written shortly after the leaked opinion in Dobbs v. Jackson Women’s Health Organization.
Settled precedent? Super precedent?
A great deal has been asked and asserted about that in recent Supreme Court confirmation proceedings. The specific focus has been on the nominees’ views about Roe v. Wade and a woman’s right to choose an abortion, first recognized by the court in that 1973 decision. Those questions and assertions reached an even higher level of intensity with the leak of Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization, calling for Roe to be overruled.
As the senators who have been asking those questions must surely know, as must the nominees who responded with their requisite rehearsed answers, no precedent is truly settled, let alone somehow “super.” No prior decision is actually immune from being overruled. In fact, there have been no fewer than 300 reversals in the court’s history.
Beyond that, and perhaps counterintuitively, constitutional precedents are in some ways the most vulnerable. They may well be the most critical to our system of government and to the balance between societal order and individual liberty. Nevertheless, as justices as ideologically distant from one another as Louis Brandeis and Antonin Scalia both concluded, practical necessity justifies a greater willingness on the part of the court to reconsider those past decisions.
“[I]n cases involving the Federal Constitution,” the former political activist Brandeis explained, “correction through legislative action is practically impossible”; for that reason, the “Court has often overruled its earlier decisions.” Six decades later, the more politically conservative Scalia echoed the so-called “Brandeis dichotomy,” i.e., between constitutional precedents and all others. “We have long recognized, of course,” he noted without contradiction, “that the doctrine of stare decisis is less rigid in its application to constitutional precedents.”
While the “Brandeis dichotomy” has become a virtual canon of the court, a vice-virtue dichotomy about the overruling of any particular precedent is considerably more equivocal. The distinction is more often about the perceived merits of the precedent rather than of the doctrine of stare decisis itself. A little reflection, objectivity and candor attest to that truth. Regarding a woman’s right to choose, for example, the ardent support for Roe is not based on the fact that it is a precedent, nor is the fierce opposition because stare decisis is less rigid in constitutional cases.
Indeed, the history of constitutional law is replete with illustrations of overruled precedents. In most cases, the battle between overruling and preserving was hard fought. The competing arguments were sufficiently strong that the issues had to be resolved at the Supreme Court level. In every one of those cases, American constitutional law was changed. In every case, support for the court’s resolution was divided – sometimes extremely, bitterly and persistently so. And rarely, if ever, was support for the resolution of fundamental questions of liberty and justice actually dependent upon contending views of stare decisis, as opposed to contending views about the substantive merits.
Let’s consider a few of the most well-known – i.e., famous or notorious depending on one’s perspective – overrulings of constitutional precedent in Supreme Court history.
Of course, we must start with Brown v. Board of Education. It is difficult today to find any serious person who opposes that decision to end government-sponsored racial segregation – or is willing to admit it. But in 1953, the court under Chief Justice Fred Vinson had been prepared to uphold the separate-but-equal doctrine of Plessy v. Ferguson. With Vinson’s sudden death, the appointment of his successor Earl Warren, and a great deal of compromise and persuasion, the court was turned around the following year and unanimously rendered one of its proudest decisions.
The resistance to the decision in Brown was so strong that over the course of the next several years, Presidents Dwight Eisenhower and then John Kennedy deployed federal troops to overcome the official and mob defiance in southern and midwestern states. The nation was deeply divided over the court’s decision to make racial segregation under the law – which it had endorsed in Plessy – now a violation of the Constitution. Was overruling that 58-year-old precedent a vice or virtue? Should stare decisis have ruled the day, or racial equality and decency?
Thirteen years after Brown, the Supreme Court rendered a decision that was, perhaps, the most dreaded by those who opposed racial integration. In Loving v. Virginia, the court invalidated the so-called “anti-miscegenation” laws – still widespread in the South – that prohibited mixed-race marriages.
The court in Brown had meticulously avoided addressing that specific issue. There was concern that, although invalidating such laws was a natural corollary to its ruling, it might undermine the court’s unanimity and further enrage much of the country. Nevertheless, in 1967, the Warren court mustered another decision, without dissent, to overrule Pace v. Alabama in which it had upheld a criminal conviction for “fornication between a white person and a Negro.” Would it have been better for the court to adhere to stare decisis and uphold that 84-year-old precedent?
If longevity of a precedent is no guarantee that it will be respected, what about its recency? Well, in one of its very finest moments, the Supreme Court, speaking in a magnificently penned opinion by Justice Robert Jackson in West Virginia v. Barnette, overruled a decision it had rendered a mere three years previous. Discarding that recent precedent of Minersville School District v. Gobitis, this time the court enforced the religious objection of the Jehovah’s Witnesses against state laws that mandated recitation of the Pledge of Allegiance by all schoolchildren.
In a turnaround not quite that rapid – but with the same justice who authored the dissent in the first decision still there to author the majority to overrule it in the second – the court in Gideon v. Wainwright rejected its prior ruling in Betts v. Brady. Speaking through Justice Hugo Black, the court in Gideon held that the fundamental justice guaranteed by constitutional due process entitled every person criminally accused, whether rich or poor, to the assistance of an attorney. Accordingly, the court ruled, contrary to its Betts decision 21 years earlier, that indigent defendants who could not afford a lawyer on their own were indeed entitled to counsel provided by the government.
As students of the court’s history know, Gideon was one of a series of decisions which, in short order, overturned an entire body of constitutional caselaw. Rights of the accused, which had previously been assertible only in federal prosecutions under the Bill of Rights, were made applicable against the states, despite earlier decisions rejecting such application. Among those rights made applicable to the states were the protection against unreasonable searches and seizures, against cruel and unusual punishment, against compulsory self-incrimination and against double jeopardy, as well as the right to confront adverse witnesses, to a speedy trial and the previously discussed rights to a jury trial and to counsel.
That was not the only period in which the Supreme Court engaged in a wholesale overruling of precedents. The famous “switch in time that saved nine” in 1937 resulted in the discarding of an entire body of Lochner era jurisprudence. Beginning with its 5–4 decision in West Coast Hotel Co. v. Parrish, upholding a minimum wage law, followed within days by another 5–4 split in NLRB v. Jones & Laughlin Steel Corp., upholding the right of workers to unionize, the court dismantled the caselaw that had defined its prior rejection of economic protections for workers, children, consumers and other vulnerable participants in the marketplace.
There is not much clamor in current public debate for a return to the free market excesses of the Lochner era, to prosecutions without the right to counsel, to criminal investigations without search and seizure protections, to racial segregation, to anti-miscegenation laws or to various other formerly approved aspects of American life, even though they had all been endorsed by Supreme Court precedents. To the contrary, the landmark decisions that later overruled those precedents are mostly taken for granted today and celebrated as part of our national heritage.
But, to be sure, none of this is to suggest that overruling precedents is an unalloyed good, nor to suggest that a change in views at the Supreme Court is always to be welcome. Beyond that, the controversies that surround a revision of constitutional law do not always evaporate.
So it is with Roe v. Wade. Whatever else can be said about that decision, the controversy around it has not dissipated. And as said earlier, if that decision should be reaffirmed, it’s not because it is a precedent – even a 50-year-old one – but rather because the strong interests that it protects are viewed as outweighing the competing ones.
If, on the other hand, Roe should be overruled, it should not be on the basis of political partisanship, or personal religious beliefs, or utter dismissal of competing interests, or taking sides in a culture war or, relatedly, disdain for the still-developing legal protection of women’s rights – let alone on the basis of woefully flawed constitutional arguments. But that is another topic.
For now, suffice it to say that the doctrine of stare decisis is not what ultimately makes or breaks a decision – especially a constitutional one. And overruling a constitutional precedent may well be a virtue as often as a vice.
Vincent M. Bonventre is Justice Robert H. Jackson Distinguished Professor of Law at Albany Law School and director for the Center for Judicial Process.
 410 U.S. 113 (1973).
 See Josh Gerstein and Alexander Ward, Supreme Court Has Voted To Overturn Abortion Rights, Draft Opinion Shows, Politico, May 2, 2022, https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473.
 See Library of Congress, Table of Supreme Court Decisions Overruled by Subsequent Decisions, http://constitution.congress.gov/resources/decisions-overruled.
 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–07 (1932) (Brandeis, J., dissenting) (citing numerous constitutional decisions that had already been overruled at that time).
 Harmelin v. Michigan, 501 U.S. 957, 965 (1991).
 347 U.S. 483 (1954).
 163 U.S. 537 (1896).
 For the fascinating and suspenseful story behind the Brown decision, see David M. O’Brien, Justice Robert H. Jackson’s Unpublished Opinion in Brown v. Board: Conflict, Compromise, and Constitutional Interpretation (Univ. Press of Kansas, 2017).
 The tale of the Brown decision and its aftermath are well summarized in Henry J. Abraham and Barbara A. Perry, Freedom and the Court: Civil Rights and Liberties in the United States, 8th ed., 390–401 (Univ. Press of Kansas, 2003).
 388 U.S. 1, 5 n. 4 (1967).
 See O’Brien, supra note 7, at 99–103, 116–17.
 106 U.S. 583 (1883).
 Loving, supra note 9, 388 U.S. at 10.
 319 U.S. 624 (1943). One should never bypass an excuse to quote Justice Jackson in some of the most glorious words in constitutional history: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” Id. at 642.
 310 U.S. 586 (1940).
 372 U.S. 335 (1963).
 316 U.S. 455 (1942).
 The very best discussion of this nationalization of federal constitutional rights is in Abraham and Perry, supra at 33–175: ch. 3, The Bill of Rights and Its Applicability to the States, and ch. 4, The Fascinating World of “Due Process of Law.”
 In order as mentioned: Mapp v. Ohio, 367 U.S. 643 (1961) (unreasonable search and seizure); Robinson v. California, 370 U.S. 660 (1962) (cruel and unusual punishment); Malloy v. Hogan, 378 U.S. 1 (1964) (compulsory self-incrimination); Benton v. Maryland, 395 U.S. 784 (1969) (double jeopardy); Pointer v. Texas, 380 U.S. 400 (1965) (confront adverse witnesses); Klopfer v. North Carolina, 386 U.S. 213 (1967) (speedy trial); Duncan v. Louisiana, 39 U.S. 145 (1968) (jury trial); Gideon v. Wainwright, 372 U.S. 335 (1963) (assistance of counsel).
 The era of laissez faire jurisprudence, named after the decision in Lochner v. New York, 198 U.S. 45 (1905), where the court invalidated a state law setting maximum working hours, just as it had invalidated numerous other federal and state social welfare legislation, came to an end in 1937. Amidst President Franklin Roosevelt’s plan to pack the court by expanding its membership beyond nine, Chief Justice Charles Evan Hughes and Justice Owen Roberts joined Justices Louis Brandeis, Benjamin Cardozo and Harlan Stone to uphold such laws.
 300 U.S. 379 (1937).
 301 U.S. 1 (1937).
 I have written elsewhere about the “nonsensical, ahistorical, and contra-constitutional argument[s]” in the leaked Alito opinion – i.e., there is no constitutional right to choose because “it’s-not-in-the-text” of the Constitution and because it’s not “rooted in the Nation’s history and tradition.” Those tests would negate most of our cherished landmark decisions. See The Leaked Opinion – Constitutional Nonsense Revisited (Part 1 and Part 2) in New York Court Watcher, http://newyorkcourtwatcher.com.