Chemerinsky: Precedent seems to matter little in the Roberts Court
Erwin Chemerinsky. Photo by Jim Block.
How much weight does the Roberts Court give to precedent? This is the crucial underlying question now that the U.S. Supreme Court has granted review in Dobbs v. Jackson Women’s Health Organization, which puts the fate of Roe v. Wade before the justices. The case concerns a Mississippi law that prohibits abortions after the 15th week of pregnancy.
The court has said the “essential holding” of Roe v. Wade is that states cannot prohibit abortions prior to viability, the time at which the fetus can survive outside the womb. That, at the earliest, is the 22nd or 23rd week of pregnancy. The Supreme Court, in granting review in the Mississippi case, said the issue before it is whether states can prohibit abortions before viability.
If the court upholds the Mississippi law, then there is nothing to stop states from prohibiting abortions even earlier in pregnancy. Texas recently became the latest state to prohibit abortions once a fetal heartbeat can be detected, as early as the sixth week of pregnancy. Alabama has adopted a law that prohibits virtually all abortions.
How much does stare decisis matter in the Roberts Court? Both recent decisions and those from past terms provide an answer: not much.
This term
Two cases recently decided by the court involved the question of the justices’ fidelity to precedent. The issue in Jones v. Mississippi was what must be demonstrated to impose a sentence of life without parole for a murder committed by a juvenile. In 2012, in Miller v. Alabama, the court held that there cannot be a mandatory sentence of life without parole for a homicide committed by a juvenile. In Montgomery v. Louisiana, in 2016, the Supreme Court held that this applies retroactively to those who received such sentences prior to Miller.
Brett Jones was convicted of murdering his grandfather; Jones was 15 when the 2004 murder occurred. He was given a mandatory sentence of life without parole. He argued to the court that there must be a finding of “incorrigibility” to justify such a sentence. The court, in a 6-3 decision, rejected this argument.
Justice Brett M. Kavanaugh wrote the majority opinion and declared Miller only “required that a sentencer consider youth as a mitigating factor when deciding whether to impose a life-without-parole sentence. Miller did not require the sentencer to make a separate finding of permanent incorrigibility before imposing such a sentence.” The court said a punishment of life without parole for a homicide committed by a juvenile is allowed so long as “the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.”
But this, then, means Miller accomplished little. Long before Miller, in Stanford v. Kentucky in 1989, the justices held that a court must consider youth as a mitigating factor in imposing sentences. Justice Sonia M. Sotomayor, in a dissenting Jones opinion joined by Justices Stephen G. Breyer and Elena Kagan, said the court’s ruling “guts” Miller and Montgomery because as the court stated in Montgomery, “Miller’s essential holding is that ‘a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption.’ ”
Simply put, Miller and Montgomery imposed great limits on the ability to impose life without parole for homicides committed by juveniles; the majority in Jones reinterprets the earlier decisions as requiring no more than the youth of the offender be considered as a mitigating factor in sentencing. Justice Sotomayor lamented, “How low this court’s respect for stare decisis has sunk.”
In one sense, this decision is not surprising. Miller was a 5-4 decision, with Justices Anthony M. Kennedy and Ruth Bader Ginsburg in the majority. It built on earlier rulings in the 2005 Roper v. Simmons decision, which held that it is cruel and unusual punishment to impose a death sentence for a crime committed by a juvenile, and Graham v. Florida in 2010, which held that it violates the Eighth Amendment to impose a sentence of life without parole for a nonhomicide crime committed by a juvenile.
Both of those, too, were 5-4 decisions, with Kennedy and Ginsburg in the majority. Their replacements, Justices Kavanaugh and Amy Coney Barrett, voted the opposite way in Jones and along with the other four conservative justices created the majority to very narrowly interpret Miller and Montgomery.
The other recent case where the court considered stare decisis was Edwards v. Vannoy. A year ago, in Ramos v. Louisiana, the Supreme Court held that the Sixth Amendment requirement for a unanimous jury verdict applies in state courts. Two states, Louisiana and Oregon, allowed convictions by nonunanimous juries. The issue in Edwards v. Vannoy is whether this applies retroactively to those who were convicted by nonunanimous juries before the court’s decision in Ramos.
Teague v. Lane, in 1989, held that a Supreme Court decision applies retroactively in two circumstances. One is if it puts a matter beyond the constitutional reach of the criminal law; in other words, a substantive change in the law that limits what the government can punish applies retroactively. The other is a “watershed” rule of criminal procedure.
It would seem that if anything is a watershed rule of criminal procedure, it would be the court’s decision in Ramos. In that decision, the court said a verdict taken from 11 jurors “[is] no verdict at all” and described the Sixth Amendment right to a unanimous jury “vital,” “essential,” “indispensable” and “fundamental” to the American legal system.
But the court in a 6-3 decision explicitly overruled that aspect of Teague and held that no longer is there an exception to allow retroactivity for watershed rules of criminal procedure. Justice Kavanaugh, again writing for the majority, declared, “New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund. It must be regarded as retaining no vitality.”
Justice Kagan wrote a dissent joined by Justices Breyer and Sotomayor and lamented the disregard for stare decisis: “In overruling a critical aspect of Teague, the majority follows none of the usual rules of stare decisis. It discards precedent without a party requesting that action. And it does so with barely a reason given, much less the ‘special justification’ our law demands.”
In one sense, it is important not to overstate the significance of this ruling. Since Teague, never had the court found anything to be a “watershed” rule of criminal procedure. But the explicit overruling of precedent and the court’s holding that never will a procedural rule apply retroactively are quite important.
As mentioned, both of these recent decisions were 6-3, with Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito, Neil M. Gorsuch, Kavanaugh and Barrett as the majority. No one should be surprised to see this split occur with great frequency in important cases on the current court.
Recent years
Several times in the past few years, the court in 5-4 decisions (with Ginsburg still on the court and joining Breyer, Sotomayor and Kagan in dissent) has expressly overruled precedent. In 2019, in Franchise Tax Board v. Hyatt (which, I should disclose, I argued on behalf of the losing side), the court overruled the 40-year-old precedent of Nevada v. Hall and held that a state could not be sued in another state’s court.
Also in 2019, in Knick v. Township of Scott, Pennsylvania, the court overruled its 1985 decision in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, which held that a claim that property had been taken without just compensation could not be brought until state procedures had been exhausted.
In 2018, in Janus v. American Federation, the court overruled its 1977 decision in Abood v. Detroit Board of Education, which held that the government could require nonunion members to pay their share of the union dues that go to support its collective bargaining activities.
In conclusion
The court’s choice to hear Dobbs v. Jackson Women’s Health Organization is potentially momentous. Lower courts for years have struck down laws prohibiting abortions before viability and the Supreme Court always has denied review. The court’s hearing of this case, together with its current composition, focuses attention on whether there is now a majority to overrule Roe. Looking at recent cases gives a clear sense that stare decisis is likely to matter little in what the court chooses to do.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book is The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020).
