‘Erroneous Decisions’ And The End of Roe

In the recent case of Ramos v. Louisiana, the Supreme Court of the United States ruled that the Sixth Amendment to the U.S. Constitution requires a unanimous jury verdict for a defendant to be convicted of a serious crime in state court. Justices Brett Kavanaugh and Clarence Thomas penned concurring opinions in the Ramos case that discuss the legal doctrine of stare decisis (pronounced STAR-ay de-CISE-is). These opinions offer insight as to how these two justices might rule in a future case challenging the Court’s decision in Roe v. Wade, 410  U.S.  113  (1973).

LegalDictionary.net defines stare decisis as a “legal doctrine in which a decision previously reached by a court is used as authority in all future cases that are based on the same basic circumstances or facts.” The purpose of the doctrine is to promote predictability and consistency in the law. As Justice Kavanaugh’s Ramos concurrence notes, however, the Supreme Court does not treat stare decisis as an “inexorable command”; rather, the Court sometimes overturns its own prior decisions. In Justice Kavanaugh’s view, the Court should consider three factors in deciding whether to overrule one of its past decisions in constitutional law cases: Whether the prior decision is “not just wrong, but grievously or egregiously wrong”, whether the prior decision “caused significant negative jurisprudential or real-world consequences”; and whether overturning the past decision would “unduly upset reliance interests.”

Justice Thomas’s concurring opinion in Ramos takes a different and better approach to stare decisis. For Justice Thomas, “the Court’s typical formulation of the stare decisis standard…elevates  demonstrably  erroneous  decisions…over the text of the Constitution and other duly  enacted  federal  law.” In other words, Justice Thomas believes that “demonstrably erroneous” decisions should be overturned. Later in his opinion, Justice Thomas describes Roe as an “incorrect” decision that was based on a flawed interpretation of the Constitution.

What does all this legal mumbo-jumbo mean in the real world? It means a great deal. If the Court hears a future case in which it is asked to overturn Roe, the Court must not be so deferential to its own past decisions that it refuses to interpret the Constitution correctly. Justice Thomas is right in asserting that if a Supreme Court decision is “demonstrably erroneous,” that decision should be overturned. Roe v. Wade is the perfect example of such a decision: Nothing in the Constitution articulates a “right” to have an abortion. (Sadly, the Court already missed one opportunity to overturn Roe in Planned Parenthood v. Casey, 505 U.S. 833 (1992).)

At New Yorkers for Constitutional Freedoms, we look forward to a day when the Supreme Court will have the courage to overturn Roe v. Wade and, in so doing, to right a wrong that has led to the deaths of tens of millions of innocent unborn children. May that day come soon.