Professor John Greabe discusses the impact of stare decisis on court decisions, especially regarding the United States Supreme Court. This episode revolves around Professor Greabe's Constitutional Connections series running in the Concord Monitor, read this month's edition: https://www.concordmonitor.com/The-Supreme-Court-and-constitutional-stare-decisis-33880073. Produced and hosted by A. J. Kierstead.
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Legal topics include civil rights, United States Supreme Court, constitutional law
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A. J. Kierstead (Host):
Professor John Greabe discusses the impact of stare decisis on Supreme court decisions. This is The Legal Impact presented by the University of New Hampshire Franklin Pierce School of Law, now accepting applications for JD, graduate programs, and online professional certificates. Learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the faculty or host and do not constitute legal advice or necessarily represent the official views of the University of New Hampshire.
A. J. Kierstead (Host):
So, John, we are continuing to follow your constitutional connections article series that's running in the Concord Monitor, which you're in the middle of part of a three part series on the U.S. Supreme court case revolving around June Medical Services V. Russo, the latest editions on Supreme Court and constitutional stare decisis. Can you define what that term means?
John Greabe:
Sure. Stare decisis literally in the Latin means to stand by the decisions, to follow the decisions. And so, there's two branches of stare decisis, horizontal and vertical. So, we're going to make this as jargony as possible and act like lawyers. Right? So, vertical stare decisis is the term we use to stand for the proposition that lower courts have to follow the rulings of higher courts within their own jurisdictions. So, under vertical stare decisis, New Hampshire trial courts will follow the rulings of the New Hampshire Supreme Court on matters of New Hampshire law. Lower federal courts will follow the rulings of higher federal courts within their jurisdiction. So, the district of New Hampshire will follow the rulings of the U.S. Court of Appeals for the first circuit. And they'll all follow the rulings of the United States Supreme Court on matters of federal law.
John Greabe:
Horizontal stare decisis, in contrast, is the term we use to describe when a high court decides to continue to follow its own precedent, regardless of whether it actually agrees with that precedent. Because the U.S. Supreme Court is the final word on the meaning of the constitution, at least in litigated cases. The New Hampshire Supreme Court, for examples, it has the final word on the meaning of New Hampshire law in litigated cases. So, as a matter of course, ordinarily courts will follow and apply, high courts rather, will follow and apply their own precedents regardless of whether the current court actually thinks that those precedents were correctly decided.
A. J. Kierstead (Host):
Right. Which would definitely come into question as, over time judges, become replaced, they age out. Like in New Hampshire, as soon as they hit age 70, they age out. And U.S. Supreme Court, it's when they decide to retire or die.
John Greabe:
Yeah. Exactly. Yeah. Yeah. Federal judges hold their positions for lifetime, at least during good behavior. So, yeah. And so, basically the idea is this, the New Hampshire Supreme Court is today comprised of four individual justices. But it regularly will apply precedent that was generated by the court when the court had an entirely different makeup. And it will treat that precedent as the law of the court, at least in the typical case, regardless of whether or not these four individual justices today happen to think that that case was correctly decided or not. And so, this doctrine of horizontal stare decisis serves a broader goal of reinforcing that law is something more than the thoughts of the individual judge or the individual person who holds judicial power at a particular point in time.
John Greabe:
So, it provides continuity and it sort of reinforces this idea that the law is something above the human beings who are responsible for creating it. And it also simply responds to the very practical needs that a court can't decide every issue afresh as it arises in the course of litigation. I mean, without horizontal stare decisis, if courts didn't start from the presumption that settled precedent was indeed settled, every case would involve just a nightmare of issues that would need to be resolved as a matter of first impression.
A. J. Kierstead (Host):
And controversial topics like abortion would definitely end up going back and forth every four years or plus.
John Greabe:
Absolutely. Yeah. It would have especially dire ramifications on issues where reasonable people disagree. Now, that said, courts will sometimes decide to overrule their precedents. The New Hampshire Supreme Court will sometimes revisit an old precedent and say, we think it's time for us to take another look at this. And it has the power, if it so decides, to overrule a precedent. And so does the U.S. Supreme Court. And that fact, of course, is what plays such an important role in all the battles that we've seen recently over Supreme Court nominations. Because those politicians are battling for to play somebody on the court who may disagree with precedent that they don't like and would perhaps vote to take that affirmative step to overrule that precedent and to set the court on a different course.
A. J. Kierstead (Host):
I'd imagine keeping with stare decisis would be very important for training lawyers as they're going through law school, for advising clients on how to handle a criminal matter, even civil matters for that matter, I'd imagine.
John Greabe:
Absolutely. I mean, actually, interestingly I think there is broad agreement that stare decisis has an especially important role to play in the area of contract law and in the area of property law, because people are making decisions all time to enter into contracts on the assumption that that contract will be enforced by a court and it will be enforced according to the principles of contract law that bind that court. Similarly, if you're writing your will to dispose of your property, you're doing so on the assumption that the law will remain stable so that you can achieve your testamentary desires by writing the will in a certain way. And so, courts are very, very reluctant to change precedent in the context of contracts and properties because reliance interests are so strong.
John Greabe:
As we move into different contexts though, there's broader disagreement about how important it is to stand by the precedents versus how important it is to get the question right. So, torts is an example where courts have traditionally been more willing to change direction, if they believe that the law needs to take a turn. People don't go out and drive recklessly on the assumption that they're an operating within a particular legal regime.
John Greabe:
And then, constitutional law is really the big area where there's the biggest dispute about how much stare decisis ought to bind. Because, on the one hand, you have the need for the court to appear as a law court. We give the court this awesome power to have the final say on the meaning of the constitution. And if, at the end of the day, those rulings were regularly overturned whenever a new person leaves the court, a new person joins the court and somebody else leaves the court, it would really undermine the notion that what's happening there is legal. It would feel more like just politics playing itself out in an alternative forum.
John Greabe:
On the other hand though, you have the argument that nothing is more important than getting our constitution right. And we shouldn't just blindly follow precedents that are incorrectly decided or where a majority of the court has come to believe that they're incorrectly decided. Because, when that happens, we, the people of 2020 are told that we can't do something by the constitution where that's maybe not a very good reading of the constitution. And it made prevent us from tackling a problem that we need to address through our political processes.
A. J. Kierstead (Host):
Now can you give any instances where stare decisis maybe hasn't been the rule when it comes to certain topics?
John Greabe:
Yeah. I mean, a great example of where law has evolved really quickly and where the court has overturned its precedence is the area of the rights of people with a same sex sexual orientation, LGBTQ rights. The first major decision by the Supreme Court in this area occurred in 1986 where the court upheld a Georgia statute that made it a criminal act to engage in the act of sodomy. The statute wasn't written to address same sex sodomy. It precluded all sodomy. And the court recognized that the statute could not constitutionally be enforced in the context of a heterosexual relationship, but they said that it could constitutionally be enforced in the context of a same sex relationship. Now, this was a criminal statute that made sodomy a felony and authorized imprisonment for up to 20 years. So, 1986 isn't that long ago.
A. J. Kierstead (Host):
No.
John Greabe:
17 years later, the court overturned that decision in Lawrence versus Texas and struck down a Texas statute that did single out same sex sodomy and hold it to be illegal. And the court went through a lengthy analysis of stare decisis factors and said that those factors, the factors that ordinarily militate in favor of the court following its precedent here did not yield the conclusion that the court should continue to follow the 1986 ruling. And they said basically that that ruling was wrong the day that it was decided and it remains wrong today. And, of course, that decision in 2003 paved the way for the decision in Obergefell just a few years ago, which actually now holds that LGBTQ people have a right to marry somebody regardless of the sex or gender of that particular person.
John Greabe:
So, that's an area where stare decisis didn't play a very, very strong role. And the dissenting justices in those cases were jumping up and down and screaming about that, by the way. Because, in contrast, stare decisis did play a very strong role in the decision of the Supreme Court in 1992 to reaffirm the core of the holding in Roe versus Wade, which is of course the 1973 decision which recognized a constitutional right, a qualified constitutional right to end a pregnancy. Many people thought that by 1992 the composition of the court had changed to a sufficient extent that Roe was going to be overruled, but it wasn't. Three judges, three justices of the Supreme Court, Justices Kennedy, O'Connor, and Souter combined together and invoked the doctrine of stare decisis and said, while we're going to reshape the regulatory environment around abortion, and therefore step back from Roe versus Wade a little bit, we're going to reaffirm its core holding, which is that a woman has a liberty interest in choosing to end a pregnancy, if she so chooses.
John Greabe:
So, you can hold those two contexts up for comparative purposes. The rights of LGBTQ people, stare decisis was not followed as the court advanced and expanded rights in that area. With respect to Roe versus Wade, at least up til now, stare decisis has caused the court to continue to follow the core holding of Roe versus Wade, even though one suspects that a majority of the members of the current court think that Roe was wrongly decided.
A. J. Kierstead (Host):
Now there was a recent decision that's been handed down by the Supreme Court actually the day before we're recording. We're recording on the 21st of April. This coming out next week. But can you speak to that?
John Greabe:
Yeah. This just came down yesterday. And I have to admit, I've just been madly reading through it. But this is an entirely different context, this Ramos decision. But in 1972 the Supreme Court had held that in federal criminal trials there is a right to a unanimous jury verdict. In other words, someone cannot be accused in federal court of a federal crime unless the jury unanimously agrees to do so. In that same 1972 ruling, however, the court held that the states could continue to have non unanimous juries.
John Greabe:
Fast forward to today. An individual who was convicted by a jury that was divided ten to two in the state of Louisiana brought a constitutional challenge to his conviction. And yesterday the Supreme Court overturned that 1972 precedent and held that in state court, as well as in federal court, there is a requirement that juries be unanimous.
John Greabe:
Now, most states require unanimity in criminal jury verdicts. So, this won't have too disruptive an effective everywhere in the country. But obviously... but Oregon and Louisiana, Louisiana recently changed on its own, but for many years did allow non unanimous jury verdicts. And Oregon did the same. Obviously, this means that persons convicted by non unanimous juries in those states are going to have a constitutional basis for challenging their convictions.
John Greabe:
Now, that rule will get applied on direct appeal. So, people whose direct appellate rights have not yet run out will presumably just be entitled to a new trial if their conviction was pursuant to a non unanimous jury. What gets tricky is what about people who were convicted ten years ago, or 15 years ago? They will go and file petitions for a writ of Habeas Corpus. The law in that area is complicated, but it's actually quite hard on Habeas Corpus for a person to get legal relief when there's been an intervening change in the law that, had it been in effect back then, it would have benefited them.
John Greabe:
But so, what was particularly interesting about the case though, is that the court really divided into factions and went at each other about stare decisis and how big a role stare decisis ought to play in this decision of whether or not to continue to let states in the criminal law context of convicted persons through non unanimous jury verdicts. Obviously, a majority of the court was persuaded that the stare decisis factors weren't sufficiently strong to prevent it from overruling what it thought to be a clearly erroneous decision.
A. J. Kierstead (Host):
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