Law should maintain a certain amount of stability. “The people of this Nation rely upon stability in the law. Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives.” Franchise Tax Bd. of Cal. v. Hyatt, 587 U.S. __ (2019 Dissent Slip. Op. at 12-13)(Breyer, J., dissenting). And some laws will for certain stay close to the same in the future. Murder, for example, will always remain a crime. What might change, though, is the law governing how murder is proven or what the penalty for murder may be. Legislatures and Congress are always passing new laws and changing old ones. Sometimes to change the outcome of court decisions. Administrative agencies are always considering new regulations and working to perfect old ones. Even the Constitution can be amended. So, the law, while relatively stable, is not permanent for most legislative purposes. But what about the opinions of the Supreme Court of the United States? Those opinions annunciate the law for the whole country, but they are not necessarily permanent for at least two reasons.
First, in an earlier post I discussed how lawyers use the law as a tool to make arguments. With regard to a Supreme Court case those arguments revolve around distinguishing, extending, or restricting the scope of the Supreme Court’s decision. Lower courts are asked to do all of these things, and a case does not usually end up in the Supreme Court. Part of a lawyer’s job is to understand and try to make consistent disagreeing decisions on how a Supreme Court case should be interpreted. If a case based on earlier Supreme Court precedent does make it back to the Court, the Court must decide how to interpret its earlier decision in light of new facts. How it decides to apply past precedent can change the meaning of a case holding over time.
Second, the Supreme Court can decide to overrule an older decision and adopt a new–and opposite–holding. The Court (like all courts) follows a doctrine called stare decisis. That means what the Court has decided should remain decided the same way. The doctrine is meant to ensure stability in the law, but it is not absolute. The Court retains discretion to overrule past decisions.
The most recent example of the Court deciding to overrule past precedent is Hyatt. There, a plaintiff sued the State of California in a Nevada state court. The question was whether California had sovereign immunity to suit in Nevada’s courts. An earlier Supreme Court decision, Nevada v. Hall, 440 U.S. 410 (1979), had held that whether to grant immunity was discretionary with the courts of Nevada. In Hyatt, the Court began by reasoning that the holding in Hall was contrary to the historical context of the Constitution, and did not remain valid under the constitutional structure. The Court held that because Hall was wrongly decided under the Constitution, it should be overruled, which the Court did.
The dissent in Hyatt pointed out that Hall was arguably correct, and therefore it should not be overruled because of the doctrine of stare decisis. The dissent argued that just because current Justices disagree with a past decision, that alone is not justification for overruling a case decided by previous justices. The dissent concluded by noting that “[t]oday’s decision can only cause one to wonder which cases the Court will overrule next.” Hyatt, Dissent Slip Op. at 13.
Picking up on the Hyatt dissent’s closing comment, Roe v. Wade, 410 U.S. 113 (1973), has been subject to the legislative and first type of modification. However, although Roe has been subject to legislative and judicial attack, at heart it remains the law: the right of privacy protects a woman’s right to an abortion. Hyatt may mean that this holding will be subject to being overruled. In Hyatt, the Court’s conservative justices could be laying the foundation for changing the law. Alabama’s recent essential prohibition of abortion could be the vehicle that allows the Supreme Court to overall Roe. The law isn’t so stable after all.