By Jan Wolfe
WASHINGTON, Dec 6 (Reuters) – The U.S. Supreme Court has given itself more opportunities in the coming months to overturn its own past rulings, a signal that its conservative justices are rethinking how much allegiance they owe to legal precedents set years ago by the nation’s top judicial body.
A case being argued on Monday involves one of the precedents now in the crosshairs before the court, whose 6-3 conservative majority has moved American law dramatically rightward in recent years including by overturning past decisions like in the 2022 case that rolled back abortion rights.
A 1935 precedent that limited presidential powers is at issue in Monday’s case, a challenge to the legality of President Donald Trump’s firing of an official in a federal agency set up by Congress with safeguards against presidential interference. Trump’s Justice Department has asked the Supreme Court to ditch the precedent, an action that would expand the Republican president’s authority.
“This is going to be another blockbuster term where we’ll see whether legal precedent – and the central principle that the court’s holdings in previous opinions should bind its decisionmaking today – remains a constraining force at all,” said Wilfred Codrington, a professor at Cardozo Law School in New York.
BEDROCK LEGAL PRINCIPLE
A bedrock legal doctrine called “stare decisis,” Latin for “to stand by things decided,” calls upon courts to respect their prior precedents when resolving new cases on similar matters. A basic tenet of U.S. law is that stare decisis promotes consistency and predictability in the law.
Stare decisis has never been absolute, of course. Courts make mistakes and need to correct them over time.
The precedent at issue on Monday was established in a case called Humphrey’s Executor v. United States. The ruling held that Congress possesses the power to insulate certain federal agencies from full presidential control.
Rebecca Slaughter, who was a Democratic member of the Federal Trade Commission, is challenging Trump’s decision in March to fire her from the consumer protection agency. The administration has called the Humphrey’s Executor decision “egregiously wrong,” arguing that the Constitution grants the president sole control over the U.S. government’s executive branch.
The justices are due on Tuesday to hear arguments in another case in which the Trump administration is urging the Supreme Court to overturn a precedent – a 2001 decision that restricted how much money political parties can spend on campaign advertising with input from candidates.
In a different election law case argued earlier in the court’s current nine-month term, Louisiana Republicans opposing an electoral map that increased the number of Black-majority congressional districts asked the justices in October to overturn an election law precedent set in 1986.
THE ABORTION DECISION
A theme for the Supreme Court in recent years has been the repudiation of precedents loathed by conservatives.
In 2022, it overturned Roe v. Wade, the 1973 decision that had recognized a constitutional right to abortion. In 2023, it overturned decisions that allowed for race-conscious affirmative action collegiate admissions policies, including one issued as recently as 2016.
Then last year the court jettisoned a 1984 precedent that had given deference to federal agencies in interpreting laws they administer, a principle that had served as the foundation for American administrative law.
The cases involving Slaughter and the Louisiana voting map give the conservative justices more opportunities to overturn precedents set during more liberal eras in the court’s history.
The justices will wrestle with the exact contours of stare decisis. Justice Louis Brandeis, a towering figure on the court who served from 1916 to 1939, summed up the principle this way: “In most matters, it is more important that the applicable rule of law be settled than that it be settled right.”
Brown v. Board of Education, the unanimous ruling from 1954 that racial segregation in public schools violated the Constitution, overturned the “separate but equal” doctrine set in the 1896 case Plessy v. Ferguson that had provided a constitutional justification for segregation in public life.
A DEFENSE OF THE COURT
Whether the court in its current composition has shown enough respect for stare decisis is a matter of ongoing debate.
Conservative Justice Amy Coney Barrett, appointed by Trump in 2020 during his first term as president, said in a New York Times interview in October that “the court takes precedent quite seriously.”
Barrett asserted that, under the 20-year leadership of conservative Chief Justice John Roberts, the court has shown more adherence to precedent than it did under his two predecessors as chief justice, William Rehnquist and Warren Burger.
The court under Roberts has overturned precedent roughly one time per year, Barrett said, adding that the court under Rehnquist and Burger did so at a rate of 2-1/2 or three precedents annually.
David Schultz, a political science professor at Hamline University in Minnesota, said it is misleading to focus on the average number of precedents overturned annually, especially considering the court’s caseload has declined dramatically since the 1980s.
Schultz conducted a statistical analysis showing that the six current conservative justices have voted to reject constitutional precedent more often than the current liberal justices.
“The doctrine of stare decisis is changing, and weakening in important ways,” said Michael Gentithes, a law professor at the University of Akron in Ohio.
In a 1992 abortion rights case called Casey v. Planned Parenthood, the Supreme Court listed five factors to be considered when deciding whether to overrule a prior decision, such as whether the precedent is easy to apply and whether people have structured their lives based on it.
Gentithes said the court’s conservatives have not been rigorously adhering to that framework. When deciding whether to overturn a precedent, they have focused largely on whether the prior decision was poorly reasoned, Gentithes said.
Justice Samuel Alito, author of the Dobbs v. Jackson Women’s Health Organization decision overturning Roe, has been particularly willing to embrace this weaker version of stare decisis, Gentithes said.
While there is a long history of the Supreme Court overturning precedents, Codrington said, “it is happening so often with this court, and often along 6-3 lines,” reflecting its ideological divide.
“And this court is doing it in big cases, so everybody feels it,” Codrington said.
Robert Luther III of George Mason University law school in Virginia said the court’s conservative members adhere to a legal philosophy called originalism holding that constitutional provisions should be read based on their meaning at the time they were written.
“This is an originalist court, and originalism is far less concerned with what earlier courts have said about the Constitution than it is about getting the law right,” Luther said.
Luther called Humphrey’s Executor a deeply flawed decision that “espouses a view of the executive branch that bears little resemblance to reality.” Luther said the 1986 and 2001 election law precedents both already have been undermined by other more recent rulings powered by the court’s originalists.
“This term is an opportunity to reduce lower court confusion by bringing fading precedents in line with where the law has already returned,” Luther said.
(Reporting by Jan Wolfe; Editing by Will Dunham)
