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U.S. Supreme Court,
Constitutional Law

May 17, 2022

We should be scared

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With its lack of regard for precedent, we likely are on the verge of major upheaval in a way that has not been seen since 1937, when the Court overruled 40 years of precedents that had limited the ability of Congress and states to enact progressive legislation protecting workers and consumers.

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law

Erwin's most recent book is "Closing the Courthouse" (Yale University Press 2017).

What will it mean to have a Supreme Court that disagrees with countless major decisions from the last half century and that has little regard for precedent? For all that has been written about the leaked draft opinion overruling Roe v. Wade, that is a crucial question that has received too little attention.

In 2019, in dissenting from a decision that overruled a 40 year-old precedent, Justice Stephen Breyer wrote, “It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question…Today’s decision can only cause one to wonder which cases the Court will overrule next. I respectfully dissent.”

The draft opinion by Justice Samuel Alito in Dobbs v. Jackson Women’s Health Organization is simply a result of having five very conservative justices who disagree with 49 years of precedents holding that the “liberty” of the due process clause protects a woman’s right to choose whether to terminate her pregnancy. Although the leak of a draft opinion is shocking, no one should be surprised at the result or the disregard for precedent.

Once President Donald Trump was able to appoint three staunch conservative justices – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – to join Clarence Thomas and Samuel Alito, it should have been apparent to all that there is a majority on the Court to overrule Roe. And decisions in recent years show that this majority has little concern for precedent.

To pick just a few examples, in Janus v. American Federation, in 2018, the Court overruled the 40 year-old precedent of Abood v. Detroit Board of Education, which had held that a state could require non-union members to pay the share of the dues that go to support collective bargaining activities. In Knick v. Township of Scott, Pennsylvania, in 2019, the Court overruled its 1985 ruling in Williamson County v. Hamilton Bank, which required exhaustion of state remedies before bringing a takings claim in federal court. In Franchise Tax Board v. Hyatt in 2019 – which engendered Justice Breyer’s dissent that is quoted above and which I argued on the losing side – the Court overruled its 1979 decision in Nevada v. Hall, which held that a state government could be sued in another state’s court.

All of these were 5-4 decisions with the five most conservative justices in the majority. They show that this is a Court with little regard for stare decisis. And it is a Court which became decidedly more conservative when Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg in 2020.

The Court’s majority is much more conservative than the Court has been at any point since the mid-1930s and undoubtedly would have decided many cases differently. With its lack of regard for precedent, we likely are on the verge of major upheaval in a way that has not been seen since 1937, when the Court overruled 40 years of precedents that had limited the ability of Congress and states to enact progressive legislation protecting workers and consumers.

The Court’s docket already includes cases that portend dramatic reversals from precedents. On April 25, the Court heard oral arguments in Kennedy v. Bremerton School District, which involves whether a high school football coach has the right to go onto the field after games and engage in prayer, including leading players in Christian prayers. From the oral argument, it appears that the conservative justices are poised to rule in favor of the coach, which will call into question more than 60 years of decisions restricting prayers in public schools. In 2000, the Court declared unconstitutional student-delivered prayers at high school football games. If the conservative justices rule in favor of the football coach based on his freedom of speech and free exercise of religion, then all limits on prayer in public schools are in jeopardy because all restrict the freedom of teachers who want to lead prayers.

In October 2022, the Court will hear two cases – Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions and Students for Fair Admissions v. President and Fellows of Harvard College – about whether to end affirmative action by colleges and universities. In decisions in 1978, 2003, and 2016, the Court ruled that colleges and universities have a compelling interest in creating a diverse student body and may use race as one factor in admissions decisions. The sole question before the Court is whether to overrule these precedents. Few – on the right or the left – have doubt that the Court is likely to do this.

But no one should think that the conservatives on the Court will stop there. The current conservative majority certainly would not have found a right to marriage equality for gays and lesbians, as the Court did in Obergefell v. Hodges in 2015. There is no reason to be sanguine that the Court won’t overrule this decision. At the very least, they will undercut it, such as in a case to be heard next October, 303 Creative Ltd. v. Elenis, which involves whether a web designer with a religious objection to same-sex marriage has the constitutional right to violate a state anti-discrimination law.

Justice Alito’s draft opinion overruling Roe clearly casts doubt on precedents, such as Griswold v Connecticut (1965), which protect a right to purchase and use contraceptives. Justice Alito wrote that a right should be protected only if it is in the text, was understood by the original meaning of the Constitution, or has been safeguarded in an unbroken tradition. The right to purchase and use contraceptives meets none of these criteria. Conservatives have been critical of it, as they have been of Roe v. Wade.

Once Roe is overruled, some conservative states are sure to enact laws prohibiting forms of contraception like the IUD and the morning after pill that act after conception. These would seemingly be constitutional under Justice Alito’s draft opinion, which refers to the fetus being deemed “an unborn human being.” In fact, if the Court adheres to that view, it would be a basis for arguing that any law allowing abortion – even in cases of rape or incest – are unconstitutional because they discriminate against those persons who are unborn.

The implications for women’s lives of overruling Roe will be enormous. The effects, though, of Justice Alito’s approach will go far beyond abortion and portend radical changes in constitutional law.


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