Sunday, August 15, 2021
In rapid succession, the Supreme Court recently received three briefs asking it to overturn different precedents. The one that got widespread national attention was Mississippi’s brief in the high-profile case being heard next term, Dobbs v. Jackson Women’s Health Org., which asks the Court to overturn Roe v. Wade. Then, on the heels of that brief, a petition for certiorari asked the Court to overrule Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. Soon afterwards, Oklahoma filed a petition seeking reconsideration of the Court’s one-year-old, 5-4 ruling in McGirt v. Oklahoma.
The unusual spate of requested nullifications of existing precedent plainly reflects a calculation that the Supreme Court’s new majority is less tied to stare decisis than their predecessors. Still, each brief makes an effort to provide grounds why stare decisis should not insulate the targeted decisions from reassessment. A review of the arguments against simply following precedent provides lessons for appellate counsel confronting an unavoidable but adverse controlling decision.
To be sure, the doctrine of stare decisis remains a “foundation stone of the rule of law” and the “preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” The Court has deemed that following precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.” Still, stare decisis is not an “inexorable command” or “‘mechanical formula.’” In constitutional cases, stare decisis has less gravitational pull because “correction through legislative action is practically impossible.”
Dobbs presents the politically voluble issue of abortion, which has percolated for years, dominated national politics at times, and influenced Supreme Court appointments and confirmations. The potential impact of the issue in the political arena is inseparable from the legal arguments made, simply because the conversations in both playing fields have merged. That happenstance probably allows counsel to undertake a more opinionated and overtly political argument than might be prudent in other cases, particularly when some of the justices have expressed similarly strong opinions on the relevant jurisprudence.
In that vein, Mississippi’s brief asserts that both Roe and the subsequent decision in Planned Parenthood of S.E. Pa. v. Casey, “are egregiously wrong” and lack any “basis in text, structure, history, or tradition, leading to a hopelessly unworkable” legal framework. The brief’s unworkability argument is not a traditional one, though. In most instances, unworkability focuses on why an adopted test or stance fails to resolve recurring problems or issues. It asserts that the lower courts do not apply it consistently so that application of the precedent produces inconsistent results.
Mississippi’s brief frames its unworkability argument in terms of the frustration that States experience when they seek to end or heavily regulate abortion, blaming the application of heightened scrutiny when, it claims, rational-basis analysis should apply. The argument reminds a reader of the “heckler’s veto” in First Amendment law, because it relies on the sustained objections of opponents as a basis for claiming that the Court should recede from precedent. In this instance, it asserts that Roe and Casey have not contributed to a settled state of the law because they tend to block laws that Mississippi favors. In this brief, unworkability appears only as an obligatory nod. Mississippi’s argument really depends on justices’ agreeing that abortion should not receive constitutional protection so that laws restricting it are reviewed by the most deferential form of scrutiny.
Egbert v. Boule seeks the abandonment of an equally longstanding precedent, Bivens, but one that has had a lower public profile. Still, it boasts a vocal set of opponents in government and academia. Bivens and its progeny implied a direct cause of action under the Constitution for federal officer violations of the Fourth and Eighth Amendments, as well as due process. Yet, more recently, the Court has taken a narrowing view of Bivens and even suggested that the current Court would not have reached the same decision as the Bivens Court about implying a cause of action.
The petition’s unworkability argument emphasizes the Ninth Circuit’s more expansive view of Bivens in the case submitted for review to show that Bivens is irreconcilable with more recent precedent and therefore provides an uncertain basis for implying a constitutional cause of action that the lower courts cannot uniformly apply. Coming in the context of a lawsuit against a Border Patrol agent stationed near the Canadian border for First and Fourth Amendment violations, the petition claims “that judicially crafted Bivens actions could skew agents’ decision-making about whether and how to investigate suspicious activities in carrying out their important national-security mission.” Playing to the jurisprudential predilections of a majority of the Court, the petition asks that it “bring this important area into line with the Court’s modern jurisprudence respecting the separation of powers and recognizing Congress’ primacy in creating causes of action.”
Oklahoma’s petition in Oklahoma v. Bosse attempts a rare, though not unheard of feat: the overruling of a fresh precedent. Only last year, in McGirt, the Supreme Court held a large swath of Oklahoma remained part of the Muscogee (Creek) Reservation and subject to federal, not state, criminal law jurisdiction under an 1885 statute. What makes the Bosse petition credible was the immediate impact that McGirt had on future criminal prosecutions in Oklahoma, even if the effect on past prosecutions was expected.
The Bosse petition asserts that McGirt was wrong and has already had disastrous consequences, sending thousands of crime victims on a mercurial adventure to “seek justice from federal and tribal prosecutors whose offices are not equipped to handle those demands.” At the same time, it tells the justices that public safety is endangered as “crimes are going uninvestigated and unprosecuted,” confirming the worst fears of the McGirt dissenters.
The overruling of a recent Supreme Court decision, as Oklahoma seeks in Bosse, is not unprecedented. One prominent example occurred in the Flag Salute Cases. In 1940, the Supreme Court decided Minersville Sch. Dist. v. Gobitis, holding that a school district did not violate the rights of several schoolchildren who were expelled because they had religious objections to participating in the school’s morning flag-salute ceremony. Those objections led to accusations that Jehovah’s Witnesses, the religion of the expelled schoolchildren, were unpatriotic, releasing a wave of terrorism against its followers. The intolerance generated by the decision caused three members of the Gobitis majority to re-think their position. When joined by new appointee, the formerly 8-1 decision turned around to uphold a right to object to pledging allegiance as a right of conscience in West Virginia Bd. of Ed. v. Barnette. Remarkably, the new decision also ended the terroristic attacks on the Witnesses. Still, Bosse may have a higher climb than Barnette had to swing a member of the majority to the other side.
Each of these briefs demonstrate three things when asking a Court to overrule prior precedent. First, know your audience. If a court has expressed misgivings about a precedent, that become fodder for your request to abandon stare decisis. Second, explain why the precedent fails to achieve the stability that stare decisis is supposed to bring about. Third, make the consequences of staying with precedent seem as dire and bleak as possible. There is no guarantee that checking these boxes will bring about your desired result, but their absence almost guarantees failure. Advocates, no doubt, will watch developments in these cases closely to see if they succeed.
 No. 19-1392, Br. for Petitioners (S.Ct. Jul. 22, 2021).
 410 U.S. 113 (1973).
 403 U.S. 388 (1971).
 140 S. Ct. 2452 (2020).
 Payne v. Tennessee, 501 U.S. 808, 827 (1991).
 Id. (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)).
 Id. at 828 (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)).
 Id. (quoting Burnet, 285 U.S. at 407 (Brandeis, J., dissenting)).
 505 U.S. 833 (1992).
 21-147, Pet. for Certiorari (S.Ct. Jul. 30, 2021).
 Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017).
 No. 21-186, Pet. for Certiorari (S.Ct. Aug. 6, 2021).
 319 US 624 (1943).