Stare Decisis and Political Will, and Other Substantive-Due-Process Precedents
Yesterday, we looked at whether the Court’s other substantive-due-process decisions are in doubt after Dobbs. Applying Glucksberg, the Court should have no trouble concluding that they were decided incorrectly. But after that, the analysis gets more complicated.
A. Stare Decisis
After concluding that a decision is incorrect, the Court then considers whether that decision should stand even though it’s wrong. I agree with Justice Thomas that this analysis really should be simple: if a decision is clearly contrary to the Constitution, then the Court should overrule it. The Court, however, has not viewed it that simply. To the Court’s credit, Dobbs represents a departure from Planned Parenthood v. Casey’s view of precedent, which was about as strict as the laws of the Medes and the Persians. Nevertheless, Dobbs articulated five factors for considering whether to overrule a precedent: (1) whether the decision was not just wrong but egregiously wrong, (2) the quality of its reasoning, (3) its workability, (4) its effect on other areas of the law, and (5) reliance interests.
To stop this post from getting excessively long, I will simply say that all five of these factors tilted in favor of overruling Roe, but it might not be that easy with cases like Obergefell and the others. I think we’ve got a good case that they were egregiously wrong and that the quality of their reasoning was bad. The effect on other areas of the law, in my opinion, is in the middle, but we can make a good case that it tilts our way. The other two factors are harder. Unlike Roe and Casey’s viability and undue burden tests, which were vague and unworkable, I think the other rules are simpler (even though they are incorrect). Reliance interests would be the hardest obstacle to beat, but as the Court held in Janus, if the other factors can be met, then they usually outweigh reliance interests.
So do we have a shot at getting the other substantive-due-process decisions overruled? Yes. But the thing we have to watch out for is the stare decisis factors. I don’t think they will be as easy to beat as they were in Dobbs.
B. Political Will
The last question is whether the current Court has the political will to reconsider those decisions. Keep in mind that in most cases, the Supreme Court does not have to take the cases that come to it. Thus, you have to get at least 4 justices to agree to hear a case.
At my old firm, I filed a lone amicus brief in Kim Davis’s case after Obergefell, arguing that the real problem was that the Court invented a constitutional right and Kim Davis was the victim. In 2020, the Court declined to hear the case, but Justices Thomas and Alito issued a joint statement agreeing with me and urging the Court to overrule Obergefell at its earliest opportunity. That’s good, but where were Roberts (who dissented in Obergefell), Gorsuch, and Kavanaugh? (Barrett wasn’t on the Court yet, so she gets a pass.)
Despite the fact that Roberts argued passionately that Obergefell was judicial activism, I don’t think he has the stomach to throw it out now that it’s here. Gorsuch and Kavanaugh’s opinions in Bostock are telling, too. Although Gorsuch did not say so, I believe he has pro-LGBT leanings, which is why he misread Title VII to get to an absurd result. Kavanaugh dissented, explicitly telling us that he has personal pro-LGBT leanings but arguing that he couldn’t use Title VII to get to the result he wanted. Between those opinions and their failure to join Thomas and Alito in Kim Davis’s case, I think they would be unlikely to cast their votes to reconsider Obergefell unless a really compelling case was presented. I’m thinking a case with particularly good facts on our side and terrible facts on the other would help, but I don’t know what that looks like in practice.
The case gets even harder when it comes to Lawrence and Griswold. It’s easier to argue that Obergefell was more harmful than those cases because when you’re married, other people have to go along with that decision (which created complications for people like Kim Davis, Jack Phillips, and the like). There’s also the sanctity of marriage to consider. Those two issues aren’t really present when it comes to consensual sodomy and contraceptives.
Furthermore, you would have to find a lawyer, probably a State Attorney General, who would be willing to challenge those precedents. Even though there is still a consensus in some states (especially in the South) that homosexuality is wrong, a lot of people are divided on whether it’s something the government should police. That’s even more true when it comes to non-abortifacient contraceptives where the view that they are immoral is a minority view.
Because my view of stare decisis is simpler than the Court’s five factors, I believe the Court’s duty would be to overrule those precedents and then let the states decide through the political process how they would handle it. But as a practical matter, although we might be able to find an attorney to challenge Obergefell, I find it doubtful that attorneys would be willing to take the shots at Lawrence, Griswold, and the like.
So is it possible to correct these patently erroneous decisions? Yes, but it’s going to take work. In the meantime though, we can rejoice that the worst substantive-due-process decision of all time, Roe v. Wade, is gone.