Overruling precedents is part of the Supreme Court's job

For years, defenders of Roe v. Wade argued that the 1973 abortion-rights landmark must not be overturned out of adherence to stare decisis, the judicial principle that once an issue has been settled in court, it remains good law going forward. The Latin term means "let that which is decided stand." As Justice Louis Brandeis wrote in an important 1932 opinion , "Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right."

When critics of Roe would argue that the decision was poorly reasoned and lacked sound legal basis, Brandeis's words were often quoted in defense of leaving it in place.

In his very next sentence, however, Brandeis expressed an all-important caveat:

But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. The court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.

In other words, stare decisis is a preference, not a hard-and-fast policy — especially when it comes to constitutional interpretation, in which the Supreme Court has the final word.

To be sure, it's a preference most often invoked by those who approve of a given precedent. Outrage at the court's decision last week in Dobbs v. Jackson Women's Health Organization has been deafening, especially on the left. Many supporters of Roe are convinced that the five justices who joined in overruling Roe lied to the Senate Judiciary Committee, testifying that the right to abortion was settled constitutional law and immune to being overturned. But none of them said that, as both the conservative Wall Street Journal editorial page and Snopes, the liberal fact-check website, affirmed.

Many Americans who are enraged at the overturning of Roe would cheer a Supreme Court decision that overturned Citizens United v. FEC, the 2010 decision holding that businesses, nonprofits, and labor unions have a constitutional right to make independent expenditures supporting or opposing political candidates.

Ditto for District of Columbia v. Heller, the decision 14 years ago in which the court held that the Constitution establishes an individual right to possess and carry weapons. Writing for MSNBC last month, lawyer/commentator Dean Obeidallah urged his fellow progressives "to make overturning the Heller decision a rallying cry the same way the right made overturning Roe v. Wade its mission." And if Heller appeared to be endangered, it's a safe bet that countless conservatives now applauding the toppling of Roe would wax eloquent about stare decisis and the importance of leaving precedents undisturbed.

All that said, there is no getting around the fact that overturning precedents is sometimes part of the Supreme Court's job. Brandeis was not exaggerating when he wrote that the high court has "often" overruled its earlier decisions. It has happened hundreds of times in the past, and will continue to happen in the future.

"That description of the Court's practice remains accurate today," Justice Brett Kavanaugh wrote in his Dobbs concurrence.

Every current Member of this Court has voted to overrule precedent. And over the last 100 years beginning with Chief Justice Taft's appointment in 1921, every one of the 48 Justices appointed to this Court has voted to overrule precedent. Many of those Justices have voted to overrule a substantial number of very significant and longstanding precedents.

Some of those precedents were deeply controversial from the day they were decided; others were widely accepted at the time and only later came to be seen as egregiously wrong. Some overturned cases remain notorious to this day; others have been largely forgotten except by scholars, while everyone knows of the cases that toppled them.

A complete catalog of overturned Supreme Court decisions would fill several books, but here are some notable examples:

Baker v. Nelson was a 1972 case in which a gay couple, Jack Baker and Michael McConnell, applied for a marriage license and were turned down by the state of Minnesota. The men filed suit, claiming that they had a constitutional right to marry, and took their case all the way to the Supreme Court. In a one-sentence ruling, their appeal was dismissed "for want of a substantial federal question." It would be 43 years before the Supreme Court, in Obergefell v. Hodges, would rule that the right to marriage extends to same-sex couples under the Fourteenth Amendment.

In an early 20th-century case, Lochner v. New York (1905), the Supreme Court struck down a law limiting to 60 the number of hours an employee could be required to work each week. The majority argued that the law infringed the right of individuals to make their own working arrangements. On similar grounds, it invalidated a District of Columbia minimum wage law in the 1923 case of Adkins v. Children's Hospital. But in 1937, Lochner and Adkins were overturned. Ruling in West Coast Hotel v. Parrish, one justice switched his earlier position , upholding the right of states to regulate basic terms and conditions of employment.

In 1881, the state of Alabama prosecuted Tony Pace and Mary Cox, an interracial couple, for violating its anti-miscegenation statute, which barred sexual intimacy or marriage across racial lines. The case reached the Supreme Court two years later. In Pace v. Alabama , the conviction was upheld on the grotesque grounds that the law was "directed against the offense designated and not against the person of any particular color or race." For more than 80 years, Pace remained good law and anti-miscegenation statutes remained in force in the South. That finally ended in 1967, when a unanimous court held in Loving v. Virginia that "distinctions drawn according to race" were "odious to a free people whose institutions are founded upon the doctrine of equality."

When Smith Betts, an indigent farmhand, was indicted for robbery, he said he couldn't afford a lawyer and asked that one be appointed for him. The judge denied his request, and Betts was convicted. He appealed his conviction to the Supreme Court, arguing that under the Sixth and Fourteenth Amendments, he was entitled to legal representation. In Betts v. Brady (1942), the court ruled against him, 6-3. Twenty-one years later, in the legendary case of Gideon v. Wainright, the court overruled Betts. The decision was written by Justice Hugo Black, who had dissented in Betts and now had the satisfaction of demolishing it.

Supreme Court history offers scores of similar cases in which stare decisis did not stand in the way of striking down a precedent. Abood v. Detroit Board of Education, which held that public school teachers could be compelled to pay union dues as a condition of employment, was overruled in 2018. Bowers v. Hardwick , which upheld a Georgia law making sodomy a crime, was overruled in 2003. The notorious Plessy v. Ferguson decision legalizing Jim Crow segregation remained in force until Brown v. Board of Education uprooted it in 1954, holding that "separate but equal" segregation is inherently unequal and unconstitutional. The high court has overturned precedents in cases dealing with freedom of speech (Brandenburg v. Ohio), capital punishment (Gregg v. Georgia), wiretapping ( Katz v. United States), taxing out-of-state companies (South Dakota v. Wayfair), legislative redistricting ( Reynolds v. Sims), and the rights of a criminal suspect ( Miranda v. Arizona).

The Supreme Court overrules one of its prior decisions about twice a year, which is about as often as it strikes down acts of Congress. Just as laws are sometimes repealed, buildings are sometimes torn down, and scientific conclusions are sometimes superseded, so decisions by the nation's highest court are sometimes thrown out. Roe will not be the last Supreme Court precedent to end up on the ash-heap of history.

Dobbs may not be the court's last word on the subject of abortion. Stare decisis is a good rule of thumb, but not every decision is forever.