A Judge's View: Supreme Court aims to keep from revisiting issues

With the ongoing vacancy on the Supreme Court, the recent presidential election, and the ages of several of the sitting justices, there has been a lot of talk about the possibility of overturning decisions on divisive social issues like abortion, same-sex marriage and the Affordable Care Act.
Much of this talk ignores a fundamental principle of our judicial system.When an appellate court like the Supreme Court issues a decision, it becomes not only the law of the land but also binding precedent on lower courts. The Latin term is “stare decisis,” which means “to stand by things decided.” This concept gives stability and finality to those issues. If courts could casually overturn previous decisions whenever their composition changed, settled issues continually would be re-litigated. And this would waste precious resources for litigants and the courts, keeping the system from addressing issues that are not settled. In addition, if the courts were constantly flip-flopping, public confidence in the court system as an institution likely would diminish.For example, Roe v. Wade, which struck down laws criminalizing abortion, was decided in 1973. The Supreme Court has had a majority of justices appointed by Republican presidents for the entire intervening 43 years. Undoubtedly, there have been many justices who would have decided that case differently at the time and probably a few who would vote to overturn it afterward. Yet, despite multiple opportunities to strike down that decision, the Supreme Court never has done so. This is likely due to several factors. First, justices are appointed for life. That means once they are on the court, they are free to decide cases however they see fit. Often, that does not fall in line with their perceived political affiliation. Justice Anthony Kennedy authored the decision establishing a constitutional right to same-sex marriage. Chief Justice John Roberts authored the decision upholding the constitutionality of the Affordable Care Act. Justice Antonin Scalia was in the majority on the case that said burning an American flag was protected speech. All were Republican appointees.    Second, the justices on the Supreme Court are human beings keenly aware of public opinion regarding the court as an institution. Interpreting the law is not a democratic process. Sometimes the minority wins against the majority. But the court’s integrity can be called into question if the court’s decisions consistently disagree with the majority view. Finally, that concept of “stare decisis” matters to the justices. They do not want to see the same issues over and over every time a new justice replaces an old one. They do not want lower courts to guess whether a ruling is final. However ideologically opposed a justice might be to Roe v. Wade, he or she must ask whether that issue is so important as to justify the extraordinary step of overturning a longstanding precedent.Appointing Supreme Court justices is a very important job of any president. However, no one should assume a new justice will lead to overturning longstanding court precedent. Dale Harris is a 6th Judicial District judge in the St. Louis County Courthouse in Duluth.With the ongoing vacancy on the Supreme Court, the recent presidential election, and the ages of several of the sitting justices, there has been a lot of talk about the possibility of overturning decisions on divisive social issues like abortion, same-sex marriage and the Affordable Care Act.
Much of this talk ignores a fundamental principle of our judicial system.When an appellate court like the Supreme Court issues a decision, it becomes not only the law of the land but also binding precedent on lower courts. The Latin term is “stare decisis,” which means “to stand by things decided.” This concept gives stability and finality to those issues. If courts could casually overturn previous decisions whenever their composition changed, settled issues continually would be re-litigated. And this would waste precious resources for litigants and the courts, keeping the system from addressing issues that are not settled. In addition, if the courts were constantly flip-flopping, public confidence in the court system as an institution likely would diminish.For example, Roe v. Wade, which struck down laws criminalizing abortion, was decided in 1973. The Supreme Court has had a majority of justices appointed by Republican presidents for the entire intervening 43 years. Undoubtedly, there have been many justices who would have decided that case differently at the time and probably a few who would vote to overturn it afterward. Yet, despite multiple opportunities to strike down that decision, the Supreme Court never has done so. This is likely due to several factors. First, justices are appointed for life. That means once they are on the court, they are free to decide cases however they see fit. Often, that does not fall in line with their perceived political affiliation. Justice Anthony Kennedy authored the decision establishing a constitutional right to same-sex marriage. Chief Justice John Roberts authored the decision upholding the constitutionality of the Affordable Care Act. Justice Antonin Scalia was in the majority on the case that said burning an American flag was protected speech. All were Republican appointees.    Second, the justices on the Supreme Court are human beings keenly aware of public opinion regarding the court as an institution. Interpreting the law is not a democratic process. Sometimes the minority wins against the majority. But the court’s integrity can be called into question if the court’s decisions consistently disagree with the majority view. Finally, that concept of “stare decisis” matters to the justices. They do not want to see the same issues over and over every time a new justice replaces an old one. They do not want lower courts to guess whether a ruling is final. However ideologically opposed a justice might be to Roe v. Wade, he or she must ask whether that issue is so important as to justify the extraordinary step of overturning a longstanding precedent.Appointing Supreme Court justices is a very important job of any president. However, no one should assume a new justice will lead to overturning longstanding court precedent.Dale Harris is a 6th Judicial District judge in the St. Louis County Courthouse in Duluth.