The Washington PostDemocracy Dies in Darkness

Opinion At the Supreme Court, precedent takes a leave of absence

The Supreme Court in February. (Salwan Georges/The Washington Post)

Day by day, it becomes clearer how willing — maybe even how eager — the Supreme Court’s conservative majority is to discard precedents it dislikes. And, day by day, as the court acts and Republican state legislatures feel increasingly empowered to push the constitutional envelope, it also becomes clearer how dire are the consequences — for abortion rights and reasonable gun regulation, among other matters.

If the court in the past few years has taken a go-slow approach under the guidance of Chief Justice John G. Roberts Jr., the new majority — with Justice Amy Coney Barrett taking the place of Ruth Bader Ginsburg — looks to be marching under a bolder banner: We’ve got the votes, and we’re not afraid to use them.

Consider the events of a single day this week. The court issued what might have been an otherwise unremarkable ruling about whether to give “retroactive effect” to its decision last year that the Constitution requires unanimous verdicts in criminal cases. As it happened, the 2020 ruling, Ramos v. Louisiana, involved a scrambled 6-to-3 lineup of justices precisely because of a dispute over how much weight the court should give to precedent.

In Ramos, three liberal justices (Stephen G. Breyer, Sonia Sotomayor, and Ginsburg) aligned with conservatives to overturn a 1972 case. Justice Elena Kagan smartly looked past the temptation to discard a precedent that was not only obviously unjust, but with ugly racial overtones. Spying the consequences around the corner, Kagan joined Roberts and Samuel A. Alito Jr. to warn that the court was “lowering the bar for overruling our precedents.”

Follow Ruth Marcus's opinionsFollow

And so it was. The court, in an opinion Monday by Justice Brett M. Kavanaugh, said Ramos shouldn’t apply retroactively — which means that many of those serving time after being convicted by non-unanimous juries would not get a new trial.

In doing so, the majority — this time all six conservatives — didn’t simply jettison another precedent, a 1989 decision (a rule that decisions on procedural protections considered “watershed” should apply retroactively, to those already sentenced but still challenging their convictions in federal court). It acted without being asked to do so, without briefing or argument on the subject — indeed, without even stopping to tick through the usual factors for taking such a momentous step.

As Kagan noted in a particularly scathing dissent, “To reverse course, we insist on compelling reasons, thorough explanation, and careful attention to competing interests. But not here. The majority crawls under, rather than leaps over, the stare decisis bar,” referring to the doctrine by which the court stands by its precedents.

Kavanaugh chided Kagan for having the nerve to dissent in Ramos and then to “turn around and impugn” the conservative majority for not giving it retroactive effect. “Criminal defendants as a group are better off under Ramos and today’s decision, taken together, than they would have been if Justice Kagan’s view had prevailed in Ramos.”

But judges aren’t accountants, producing balance sheets that tote up net profits. They’re supposed to apply the law and dispense individual justice. It doesn’t matter to Thedrick Edwards, convicted by a non-unanimous jury of kidnapping and armed robbery, that others were able to get a new trial if he’s still serving life without parole even though his constitutional rights were violated.

If you wonder why this arcane jurisprudential sniping matters, take a look at the court’s headline action that day: agreeing to hear a challenge to a Mississippi law that prohibited almost all abortions after 15 weeks. This case had languished on the court’s docket since before Ginsburg’s death, waiting week after week for a decision about whether the justices would agree to hear it.

It satisfied none of the court’s usual criteria for accepting a case: There was no split in the circuits, no conflict “with relevant decisions of this court,” no unsettled question of federal law — except, of course, for the elephant in the room, the future of Roe v. Wade.

The Supreme Court on May 17 agreed to review a restrictive Mississippi law that provides a clear path to diminish Roe v. Wade. (Video: Reuters)

It was, in fact, so clear under the court’s previous abortion rulings that the Mississippi law is unconstitutional that one of the most extreme of President Donald Trump’s appellate appointees, James C. Ho, acknowledged that he was “duty bound” to vote to strike it down despite his conviction that “nothing in the text or original understanding of the Constitution establishes a right to an abortion.”

So, what’s the court up to here? Nothing good, from the point of view of abortion rights — just as it was up to nothing good, from the point of view of gun regulation a few weeks back when it agreed to decide whether states or localities can require special proof of need before issuing concealed carry permits.

It’s unlikely that the words “Roe v. Wade is hereby overruled” will appear in the eventual decision in the Mississippi abortion case. There are less overt ways to achieve the same result. If the court abandons its rule that prohibitions on abortion before viability are unconstitutional, it’s hard to see how that line holds at 15 weeks.

And, no secret, Mississippi and its allies have no intention of stopping there. Two days after the justices accepted the case, Texas Gov. Greg Abbott signed a law banning abortions as early as six weeks — after a fetal heartbeat is detected — and letting citizens sue anyone they believe has helped a pregnant woman violate that rule.

Clearly unconstitutional under current law. But if the justices show so little respect for their precedents, why should Mississippi or Texas? Why not just push this muscular conservative majority as far as it seems willing to go?

Read more:

Leah Litman and Melissa Murray: The Supreme Court’s conservative supermajority is about to show us its true colors

David Von Drehle: Does the Supreme Court rule, or do its members? We’re about to find out.

Henry Olsen: The Supreme Court can finally overturn ‘Roe v. Wade.’ It should do it.

Paul Waldman: Roe v. Wade’s survival just got a little more unlikely

Perry Bacon Jr.: American democracy is in even worse shape than you think