Stare decisis, the Latin term that means courts should “stand by things decided,” has jumped to the forefront of the Senate debate over President TrumpDonald TrumpFormer New York Assembly Speaker Sheldon Silver dead at 77 Biden, Democrats losing ground with independent and suburban voters: poll Bipartisan Senate group discusses changes to election law MORE’s next pick to the Supreme Court.
Centrist senators are calling for a nominee who would respect prior rulings as a way to protect the Roe v. Wade decision legalizing abortion. Liberals, pressing centrist senators to block anyone they believe would overturn Roe v. Wade, say the centrists are hiding behind meaningless language.
The battle was illustrated during an interview Sunday between CNN’s Jake Tapper and Sen. Susan CollinsSusan Margaret CollinsBipartisan Senate group discusses changes to election law The Hill's Morning Report - US warns Kremlin, weighs more troops to Europe Democrats face scaled-back agenda after setbacks MORE (R-Maine), a key swing vote in the fight over Trump’s nominee.
Collins said during the interview that she would support a justice who respected prior rulings, and argued at various points that she did not believe that Chief Justice John Roberts or Trump’s first pick for the court, Justice Neil Gorsuch, would favor overturning Roe v. Wade because it’s established law.
This provoked an outcry from liberals such as Brian Fallon, the executive director of Demand Justice, who noted that Roberts voted in 2016 to uphold a Texas law restricting abortion access. Justice Anthony Kennedy, whose retirement last week created a new opening for Trump, sided with the four liberal justices to strike down the law in a 5-3 ruling following the death of Justice Antonin Scalia.
Fallon tweeted that the discussion about precedent was “mindless.”
“In the next interview, let's hear Susan Collins answer whether she will insist that a nominee pledge to ‘uphold Roe,’ ” he tweeted on Sunday. “If she cares so much about following precedent, that would be a natural thing to insist of any nominee.”
In an interview with The Hill on Tuesday, Fallon said respect for the court’s precedent is the lowest bar a senator can set for a judicial nominee.
“If Trump’s nominee can’t come up here and tap dance rhetorically about how they respect precedent that person would have to be an imbecile,” he said. “The idea she would ask generic questions about precedent and try to have that suffice as a reassurance on Roe is unacceptable.”
Collins’s spokespeople did not return a request for comment on the criticism.
Gorsuch at his nomination hearing called Supreme Court precedent a “weighty thing” that adds to the “determinacy of law,” but Fallon noted that just last week he voted in the majority to overturn a 41-year-old precedent on the issue of public sector union fees.
“These judges pick and chose when they want to uphold and overturn precedent all the time,” he said.
Michael Kimberly, a partner at Mayer Brown and co-director of the Yale Law School Supreme Court Advocacy Clinic, agreed that getting a Supreme Court nominee to say they respect stare decisis is not the same thing as getting them to agree to uphold a particular case.
“If Roe v. Wade is what she’s concerned about, asking about stare decisis doesn’t really get to that issue,” he said of Collins.
Legal experts like Kimberly note that stare decisis is not an absolute rule. Though justices consider how much the public has come to rely on the law and what other laws it has served as the basis for, experts say the court overturns precedent more than you think.
“Precedent can be overturned,” said Daniel Epps, an associate professor of law at Washington University School of Law who clerked for Kennedy. “It happens with some regularity and depends on who joins the court.”
Kennedy’s own judicial record is an illustration.
Just in the past term, Kennedy joined the court’s majority ruling striking down a 1977 court precedent that allowed public sector unions to collect a “fair-share” fee from nonunion members to cover nonpolitical union activity.
He also authored the court’s majority 5-4 ruling that allowed states to tax online businesses. In that case, the court overturned a 1992 court ruling that required businesses to have a physical presence in a state in order to be taxed.
“Although we approach the reconsideration of our decisions with the utmost caution, stare decisis is not an inexorable command,” Kennedy wrote. “Here, stare decisis can no longer support the Court’s prohibition of a valid exercise of the States’ sovereign power.”
Jonathan Turley, a George Washington University professor of law and contributor for The Hill, argued in a recent op-ed in The Washington Post that Kennedy’s own words may be used against him in the future to strike down his own decisions.
“Kennedy’s departure was a rather curious one for a man whose legacy was largely built on 5-4 decisions,” Turley said in an interview with The Hill on Monday. “It was surprising to see him support so readily the overturning of precedent in his very last week.”
More than a commitment to stare decisis, Kimberly said senators should ask Trump’s nominee about their views on substantive due process, a legal principle that allows courts to protect certain fundamental rights.
He said the principle is rooted in cases that have limited government interference in private and personal life decisions like whom you sleep with, whom you marry, how you decide to raise your children and how to handle your own health care, including whether you chose to have an abortion and take contraception.
Rolling back Roe v. Wade, Kimberly said, could pave the way for a reversal of other rulings that are based on this principle.
“The only hope for upholding this doctrine is stare decisis and respect for the multifarious ways it has become part of our constitutional fabric,” he said.