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U.S. Supreme Court,
Judges and Judiciary,
Ethics/Professional Responsibility

May 16, 2022

When dogs catch cars: The conservative undoing of stare decisis

The more the conservative movement turns its back on stare decisis, the more our entire system of governance becomes a struggle for raw power without a single principled check or balance in place.

Daniel B. Lifschitz

Associate, Johnson & Johnson LLP

Email: dlifschitz@jjllplaw.com

Loyola Law School; Los Angeles CA

"Let the decision stand." The Latin phrase for this maxim, "stare decisis," has formed the bedrock of the American legal tradition ever since the Supreme Court first established the concept of judicial review in the 1803 case of Marbury v. Madison.

The principle dictates that courts should follow the reasoning of prior decisions on similar matters unless required to deviate by a tectonic shift in legal thinking. It is what keeps the judiciary from becoming a purely reactionary political body, one steered by the same capricious whims that animate everchanging legislative and executive regimes. It provides a modicum of predictability to the law, and our society is structured in reliance on that predictability.

For decades, conservatives abused the tradition of stare decisis in service of performative politics by drafting, and occasionally passing, legislation that knowingly flies in the face of established Supreme Court precedent, usually on constitutional matters. They did so knowing that they could use the legislation to drum up voter engagement and political donations without having to answer for its practical effects, because stare decisis would invariably prevent the laws from ever coming into effect. In skeet shooting terms, the laws were the clay pigeons, and the judges were reliable marksmen.

The problem is that at the same time conservatives engaged in this practice, they were also steadily packing the federal courts with jurists who are willing to operate as politicians wearing robes, jettisoning respect for stare decisis if it impedes a favored political goal. This second project hit a crescendo under the tenure of Donald Trump, when the Supreme Court finally obtained a solid majority-conservative block with the addition of Justices Brett M. Kavanaugh, Neil M. Gorsuch, and Amy Coney Barrett. Suddenly, legislative clay pigeons began to comfortably sail over the judiciary's head, and conservatives seemed unprepared for the moment they began to finally strike their targets.

Take, for example, the conspicuous lack of public celebration over the May 2 revelation by Politico that, in a draft majority opinion authored by Justice Samuel A. Alito, Jr., the Supreme Court was preparing to undo half a century of precedent on abortion rights by overturning both Roe v. Wade and Planned Parenthood v. Casey. Alito's decision, while not yet final, finds that the right to seek an abortion is not "deeply rooted in the Nation's history and tradition," sharpening a phrase first employed to protect fundamental rights in 1977's Moore v. East Cleveland and fashioning it into an exclusionary rule, one under which scores of additional rights established in the last century are poised to fall (including interracial and gay marriage, contraception, sodomy and protections against forced sterilization).

Having achieved this landmark victory, one would expect to see conservatives celebrating the culmination of a decades-long project to undo Roe and Casey. Yet the response has been oddly muted, with many pundits electing instead to focus on the impropriety of the draft opinion having been leaked or otherwise minimizing the knock-on effects of the decision. This is no doubt in part because opinion polls consistently demonstrate that the vast majority of Americans agree with Roe and Casey, and the conservative project therefore requires the vast majority of Americans to have their wills subverted. Indeed, Alito himself claimed that his own opinion's logic should not be extended outside the context of abortion, which provoked a guffaw from noted constitutional scholar Laurence Tribe: "That's not how principled adjudication works. Either you're being a political hack or your 'only abortion' bit is BS."

For an even starker example of judicial politicization gone mad, one can turn to the Fifth Circuit's truly lawless decision in the case of Netchoice v. Paxton to dissolve a preliminary injunction against Texas' social media regulation bill, which was specifically crafted to bully private entities such as Facebook and Twitter into publishing political speech against their will. The legislative justification for the bill was that social media companies were purportedly "censoring" conservative viewpoints on platforms that should be treated as de facto town squares. The legal community's response was that the First Amendment, Dormant Commerce Clause, and 47 U.S.C. § 230, as well as myriad judicial precedents interpreting them, all flatly prohibited the bill from being given effect.

To say the Fifth Circuit's decision to dissolve the injunction was shocking to the legal community would be an understatement. Immediately, practitioners and scholars began to debate what compliance with the law's mandates would even look like, since must-carry obligations for hate speech and other odious or low-value content not only degrade users' experience, but also conflict with competing regulatory schemes in other jurisdictions (such as the European Union) that demand removal of such content. It seems only logical that, if forced to choose between which markets to serve, most sensible social media companies would simply ban the entire population of Texas from their platforms.

Surely, the intention behind Texas' bill was not to upend the state's entirely technological sector and wall its citizens off from access to any social media platforms unwilling to play ball. Indeed, the bill even includes language purporting to prohibit such walling-off efforts, which presupposes both the jurisdiction and right to force a private entity to do business in your state. Yet the very fact that this language appears at all is a tacit concession of the bill's outlandish and unworkable nature. It was written as a form of political escapism, a snake oil pitch in which a single state could bring the global operations of Big Tech to heel. Nobody was prepared for the Fifth Circuit to pass out shot glasses.

Because the Fifth Circuit's dissolution order is bereft of any justification (which will presumably surface in a future opinion), we can only speculate what circuitous path the panel majority must have taken to dodge every piece of binding precedent that should have resulted in an easy affirmance. If the recent dissents Clarence Thomas has been writing on First Amendment and Section 230 issues are any indication, there is at least some appetite on the Supreme Court to revisit those precedents. Given how easily Alito discarded the precedents of Roe and Casey in the draft Dobbs opinion, who is to say which jurisprudence remains safe at the appellate level when it frustrates the conservative project?

This is the reality we find ourselves in, and however these matters resolve, it is undeniable that their turbulence has eroded public trust in the judiciary and wreaked havoc on settled expectations in society. The more the conservative movement turns its back on stare decisis, the more our entire system of governance becomes a struggle for raw power without a single principled check or balance in place. While nobody believes that all precedent is immutable or inviolate, the contrived reasoning that animates recent conservative disregard for the same is unsustainable in principle. It signals a newly expanded front in modern political warfare, and cornerstones of our justice system are poised to be the collateral damage.

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