How Stare Decisis Affects Us All 

With the recent string of controversial decisions by the U.S. Supreme Court that have stunned the nation, it is prudent and in the interests of the public to analyze the court’s methodology in determining 303 Creative LLC v Elenis, S.B. 4, and the Dobb’s decision. The ethical concerns that have arisen from the court’s ruling are not the main concern of this article. This article intends to address the ways in which the U.S. Supreme Court’s recent decisions have broken with a long-standing precedent; in other words, the fracturing of stare decisis as a core tenant of the nation’s judiciary. 

Analyzing Roe v. Wade  

In Roe v. Wade (1973), the Supreme Court ruled that the right to privacy, implicit in the 14th amendment, protects abortion as a fundamental right. Whilst a federal abortion ban was deemed unconstitutional, the government retains the right to restrict and regulate abortion access depending on the stage of pregnancy.1 However, while there is no explicit right to privacy written in the Constitution, the court found in Griswold v. Connecticut (1965) that the right to privacy was derived from the penumbras of other explicitly stated constitutional protections.2 The personal protections expressly cited in the first, third, fourth, fifth, and ninth amendment implied that the Constitution creates a “zone of privacy.”3 The constitutional basis for the decision rested upon the conclusion that the right of privacy was founded in the Fourteenth amendment’s concept of personal liberty. 

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.4 

–U.S. Const. amend. XIV, § 2 

 Applying this reasoning, the Supreme Court ruled abortion legal.  

Dobbs v. Jackson  

Dobbs v. Jackson is the landmark case in which the above, Roe v. Wade decision was overruled. In rendering its ruling in Dobbs, the court employed the analysis exercised in Washington v. Glucksberg 521 U.S. 702 (1997). In Glucksberg, the Court considered whether an asserted right was “deeply rooted in our nation’s history and traditions and fundamental to our concept of liberty.” 5 The Court has not used the Glucksberg reasoning in cases prior to or after Dobbs.6 In Justice Breyer, Justice Sotomayor, and Justice Kagan’s, dissenting notes, they argue that the Glucksberg test, ‘“may have been appropriate” in considering physician-assisted suicide, but “is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy (576 U. S. 6717).”   

In Dobbs, the court opted to use the narrow Glucksberg analysis, breaking from fifty years of precedent of substantive due process analysis. The court had affirmed its approach to determining substantive liberty rights under the Fourteenth Amendment in Obergefell v. Hoges, 576 U.S. 644 (2015). The Court determined that the right to marry is one of the guaranteed liberties protected under the due process clause of the fourteenth amendment. Relying on the judicial interpretation that held that the right to marry is a fundamental liberty, it is an “inherent concept of individual autonomy.”8 It is also important to note that the court agreed that there is no inherent difference between marriage between same sex couples and opposite-sex unions within the historical context of creating a home and raising children as a key corner stone of society. 9 

The court rejected the narrow test in Glucksberg and instead restated and reinforced the broader general approach set in Obergefell and in Roe. District of Columbia v. Heller the court addressed, “The provisions of the District of Columbia Code that restrict the licensing of handguns and require licensed firearms kept in the home to be kept nonfunctional violate the Second Amendment” 10. rendering their ruling, the court reasoned that: 

 it is enough to note, as we observed, that the American people have considered the handgun to be the quintessential self-defense weapon.… whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.11 

Activist Courts 

The opinions of past justices, regarding overturning of precedents that have been wrongly decided, may shed light on the evolution of the court’s philosophy. For example, in the Dickerson v. United States 7-2 opinion, which upheld the constitutionality of the Miranda warning, Chief Justice William H. Rehnquist rationalized, despite believing that the original case had been wrongly decided, “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”12 This is an example of Judicial restraint where individual justices do not allow their own personal beliefs and opinions to play a role in their decisions. 

However, current court philosophy when overruling precedent is made clear in Janus v. American Federation of State, County, and Municipal Employees, Council 31, as the court ruling signaled a shift in their view to stare decisis, “older decisions have less weight because they may have violated individual rights during their life.”13 Thus, certain conservative Justices are willing to ignore the public’s desires when they personally believe a case (Roe) was wrongly decided but heartily endorses the public’s desire when he or she personally believes a case (Heller) was decided correctly. This is an example of Judicial activism: A situation where a judge’s own beliefs and opinion are considered when deciding the outcome of a case. 

With the addition of three newly appointed, conservative justices, it is not surprising that the current Court has become an activist court. Regardless of whether it has a liberal or conservative majority, an activist court’s decisions will be viewed as a failure to adhere to judicial restraint. Both political ideologies have found themselves labeled as activist in the past, such as the Warren court (1953-1969) which expanded civil rights, civil liberties, and ended de jure racial segregation. With this new set of Justice, it has given the court a conservative majority and thus, their ruling will follow their idiosyncrasies.