On the Supreme Court, overturning bad precedents is part of the job

The alarums have grown especially loud because the court in recent terms has overturned a number of high-profile precedents to which many on the left were devoted.

In 2022, Dobbs v. Jackson Women's Health Organization overturned Roe v. Wade, holding that the Constitution does not confer a right to abortion and that its regulation is a state prerogative. The following year, the justices ruled that racial preferences in college admissions violate the 14th Amendment, overruling University of California v. Bakke, the 1978 precedent that had legitimized race-based affirmative action in higher education. And last term, in Loper Bright v. Raimondo, the court struck down its 40-year-old "Chevron doctrine," which had instructed federal judges to defer to the opinions of executive agencies when interpreting an ambiguous statute — even when the judges disagreed with the agency's view.

Many progressives and Democrats have been aghast. Harvard law professor Noah Feldman argued in a Bloomberg essay that "the court's conservatives have been cutting a swath through high-profile liberal precedents going back decades." Senator Jeff Merkley of Oregon fumed that the justices' willingness to overrule long-standing precedents amounted to "a direct assault on government 'of, by, and for the people.'" On CNN's website, a headline declared: "The Supreme Court just threw the idea of settled law out the window."

The emotion may be understandable, but the panic is misplaced.

The Supreme Court's job is not to preserve every precedent in amber; it is to decide cases according to the Constitution. When a majority of justices conclude that a previous ruling — even one many decades old — was wrongly reasoned or inconsistent with the Constitution, overruling it is not a breach of integrity; it is the court's duty. They are doing what the court has always done: reconsidering, correcting, and refining the law in light of better reasoning.

Justice Louis Brandeis put it memorably. "Stare decisis," he wrote in a 1932 opinion, "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."

Usually — but not always. "In cases involving the Federal Constitution," Brandeis continued, "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."

The same principle governs every discipline that values truth over pride. Doctors revise diagnoses that prove mistaken; engineers correct blueprints that won't hold. Why should judges be faulted for doing the same?

In other words, while adherence to precedent is prudent, obedience to the Constitution is imperative. To support his claim that precedents had "often" been superseded by later decisions, Brandeis listed scores of examples in footnotes that took up more than two pages.

If Brandeis were on the court today, those footnotes would be even more voluminous.

Again and again in the 1950s and 1960s, the high court under Chief Justice Earl Warren bulldozed long-settled law, toppling court rulings and statutes that had sanctioned or ignored injustice. Perhaps the most famous example was when Plessy v. Ferguson, which blessed racial segregation, fell to Brown v. Board of Education in 1954, but there were many others. Reynolds v. Sims established "one person, one vote," wiping out entrenched precedents that had upheld grossly unequal legislative districts. Miranda v. Arizona mandated warnings to criminal suspects and swept aside prior rulings that had tolerated coercive interrogations. Loving v. Virginia finally ended the long reign of Pace v. Alabama, with its grotesque approval of antimiscegenation statutes. By the time Warren retired, so many precedents had been reversed that, as one law professor quipped, "the list of opinions destroyed by the Warren Court reads like a table of contents from an old constitutional casebook."

Against that backdrop, the Roberts court looks positively cautious. For all the keening that today's conservative justices are heedless wreckers of precedent, the evidence shows otherwise. "The rate at which the Court is overturning prior precedents," legal scholar Jonathan Adler points out, "has not (yet) increased. To the contrary, it appears to have slowed."

In fact, as Adler has documented, the Roberts-era court has so far proved the least likely of any SCOTUS since World War II to overturn precedent. "Compared with its predecessors, the Court under Chief Justice Roberts has largely maintained the status quo."

Critics who accuse the justices of trampling stare decisis generally invoke the doctrine only when it serves their politics. When the court overruled Roe and Chevron, progressives called it judicial vandalism. But it was conservatives who had seethed when it earlier overruled Bowers v. Hardwick (which had upheld laws criminalizing homosexual sodomy) and Baker v. Nelson (which had rejected same-sex marriage). Everyone professes to honor precedent — except for the precedents they detest.

Last year, in a blistering dissent when the court killed the Chevron doctrine, Justice Elena Kagan lamented: "Today ... a rule of judicial humility gives way to a rule of judicial hubris."

Yet "judicial humility" didn't inhibit Kagan from voting to overturn Baker and other precedents she deemed wrongly decided. That wasn't hubris; it was her job. "Every current Member of this Court has voted to overrule precedent," Justice Brett Kavanaugh noted in 2022. "And over the last 100 years ... every one of the 48 Justices appointed to this Court has voted to overrule precedent." That is the nature of constitutional adjudication.

So yes, the familiar cry of "Oyez! Oyez! Oyez!" is routinely followed these days by another cry — that the Supreme Court's conservatives are blowing up the foundations of law and order. But stability and correction have always been twin pillars of the court's work. For as long as there has been a Supreme Court, its rulings have been subject to revision. Precedent deserves respect. So does fidelity to the Constitution. When the two conflict, the justices are bound to the latter.

Jeff Jacoby is a columnist for The Boston Globe, from which this is reprinted with permission.

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