The Supreme Court’s ruling Friday overturning the right to an abortion in Roe v. Wade would mark a significant — but not unprecedented — reversal of a major court ruling.
“Without these decisions,” he wrote, “American constitutional law as we know it would be unrecognizable, and this would be a different country.”
David Schultz, a law professor at the University of Minnesota and political science professor at Hamline University, said that between 1789 and 2020, the court reversed its own constitutional precedents 145 times — barely one-half of 1 percent of all rulings.
But Schultz, author of the new book “Constitutional Precedent in US Supreme Court Reasoning,” said it’s become more common, albeit still rare, in recent decades. One reason, he said, was political disagreements that the Supreme Court under Chief Justice John G. Roberts Jr. and his predecessor, William H. Rehnquist — both Republican appointees — had with the more liberal high courts of the 1960s and ‘70s.
Schultz also noted that several justices, from Antonin Scalia to Alito and fellow conservative Clarence Thomas, have espoused “originalism.” That judicial outlook makes it possible “to reject precedent in favor of their view of what they think the framers and the original text mean,” Schultz said.
Here are some of the most consequential Supreme Court rulings that overruled the court’s precedents:
Overturning ‘separate but equal’
In Brown v. Board of Education, a unanimous court in 1954 effectively overturned the court’s 1896 opinion in Plessy v. Ferguson. In Plessy, justices had concluded that segregation (in this case, in railroad cars) wasn’t unconstitutional if equal facilities were provided to each race.
“We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place,” said Chief Justice Earl Warren, reading from the bench on May 17, 1954. “Separate educational facilities are inherently unequal.”
A crowd packed the courtroom in anticipation of the ruling, although fewer than a dozen onlookers were Black, according to a story in The Washington Post at the time. As Warren read the opinion “in his clear, unhurried voice,” the newspaper reported, “spectators were poised on a razor edge of doubt until the first hint of the decision.”
The other justices on the court also paid rapt attention to the chief justice. “They obviously were aware that no court since the Dred Scott decision of March 6, 1857, had ruled on so vital an issue in the field or race relations,” the New York Times reported, referring to a Supreme Court ruling from nearly a century earlier, Dred Scott v. Sandford, which concluded that Black people could not be U.S. citizens.
Thurgood Marshall, who would go on to become the first Black Supreme Court justice, argued the Brown case for the NAACP. Eight of the nine justices were nominees of Democratic presidents, reflecting the 20-year monopoly the party had on the White House from 1933 to 1953. The only Republican nominee was Warren; President Dwight D. Eisenhower had named him to the bench the previous year.
“Today, education is perhaps the most important function of state and local governments,” Warren said. “… In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”
A quick about-face on First Amendment rights
In a 1940 case called Minersville School Dist. v. Gobitis, the court ruled 8-1 that a school district could compel public students to salute the U.S. flag, turning away a challenge from the father of Jehovah’s Witnesses who were expelled from the public schools of Minersville, Pa., for refusing to pledge allegiance to the flag on religious grounds.
“The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution,” wrote Justice Felix Frankfurter in the majority opinion, adding that “the courtroom is not the arena for debating issues of educational policy.”
But in a striking reversal in 1943, the court sided with Jehovah’s Witnesses who challenged a flag-saluting requirement in West Virginia. The court ruled 6-3 in W.Va. State Bd. of Educ. v. Barnette that compelling public school students to salute the flag violated the First Amendment.
Alito seized on that reversal in his draft opinion overturning Roe.
“Barnette stands out because nothing had changed during the intervening period other than the Court’s belated recognition that its earlier decision had been seriously wrong,” he wrote.
Actually, something else had also changed: There were two new justices, and they both voted to overturn the decision. But that wouldn’t have been enough for a majority. Three justices who had voted against the Jehovah’s Witnesses in 1940 reversed their position in 1943, providing a comfortable margin to overturn the precedent.
“If there is any fixed star in our constitutional constellation,” wrote one of the new justices, Robert H. Jackson, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act their faith therein.”
Two of the justices who changed their minds, Hugo Black and William Douglas, wrote a concurring opinion explaining their change of heart.
“Reluctance to make the Federal Constitution a rigid bar against state regulation of conduct thought [to be] inimical to the public welfare was the controlling influence which moved us to consent to the Gobitis decision,” the duo wrote. “Long reflection convinced us that although the principle is sound, its application in the particular case was wrong … Words uttered under coercion are proof of loyalty to nothing but self-interest. Love of country must spring from willing hearts and free minds.”
The right to same-sex marriage
In Obergefell v. Hodges, the court decided in 2015 to overrule a 1972 decision and establish the right to same-sex marriage. Justice Anthony M. Kennedy, the court’s frequent swing vote at the time, sided with the court’s four liberal justices in the 5-4 decision and wrote the majority opinion. “Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” Kennedy wrote.
All four conservative justices dissented and wrote their own opinions. Because the court’s balance has shifted to the right since that ruling, some legal experts believe the draft opinion in the Roe reversal could signal that same-sex marriage rights may be on thin ice too.
Advocates of same-sex marriage are particularly alarmed by Alito’s assertion that rights not specifically mentioned in the Constitution need to be “deeply rooted in this Nation’s history and tradition” to be recognized.
Corporations’ First Amendment rights
In Citizens United v. Federal Election Commission, the court ruled in 2010 that independent expenditures by corporations and labor unions were protected by the First Amendment. The ruling overturned a 1990 decision that upheld restrictions on corporate spending advocating or opposing political candidates, and a 2003 decision that upheld the part of the McCain-Feingold campaign finance reform law that had restricted campaign spending by corporations and unions. ”If the First Amendment has any force,” Kennedy wrote for the 5-4 majority, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
Democrats cast the decision as giving too much power to large corporations to exert their influence on government. President Barack Obama called it “a major victory for big oil, Wall Street banks, health insurance companies and the other powerful interests that marshal their power every day in Washington to drown out the voices of everyday Americans.”
A right to choose one’s sexual partners
In 2003, the justices struck down a Texas law banning gay sex in Lawrence v. Texas. In the 6-3 ruling, Kennedy wrote that gay people are “entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government."
That opinion overturned a controversial 1986 ruling that had upheld an anti-sodomy law in Georgia on a 5-4 vote. That ruling found that the Constitution didn’t protect gay sex, even in the privacy of peoples’ homes.
Poor defendants’ right to counsel
The court’s ruling in Gideon v. Wainwright (1963) required states to offer defense attorneys to defendants who can't afford lawyers. Justice Hugo Black wrote in the majority opinion that “reason and reflection require us to recognize that in our adversary system of criminal justice, any person [hauled] into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”
That decision, which overruled a 1942 ruling that Black had dissented from, relied on the Sixth Amendment of the Constitution, which guarantees the rights of criminal defendants, including the right to a lawyer.