Do Supreme Court Precedents Matter Anymore

Do Supreme Court Precedents Matter Anymore?

Dobbs v. Jackson Women’s Health Organization

The dramatic reconfiguration of the United States Supreme Court to one of the most conservative judicial panels in American history with today’s 6 to 3 very right of center majority began with the refusal of a GOP Senate to consider a nomination from President Barrack Obama. This, along with the death of Justice Ruth Bader Ginsburg, left Donald Trump with the power to change the essential direction of the Court with a severe turn to the right. Most of this nation’s individual liberty and civil rights rulings generated by the Court began with the appointment of Earl Warren in 1953 by Republican President, Dwight Davis Eisenhower.  Warren remained Chief Justice until 1969. 

The question legal scholars have been asking of this Trump Court is whether decades of precedent will be respected by this new Supreme Court. The answer appears to be a rather clear no; this Court intends to reverse what it does not like and put the United States on a conservative judicial vector for decades to come. The tea leaves have been very telling, as constitutional expert and UC Berkeley Law School Dean, Erwin Chemerinsky, writing for the June 3rd Journal of the American Bar Association, illustrates: 

“Two cases recently decided by the court involved the question of the justices’ fidelity to precedent. The issue in Jones v. Mississippi was what must be demonstrated to impose a sentence of life without parole for a murder committed by a juvenile. In 2012, in Miller v. Alabama, the court held that there cannot be a mandatory sentence of life without parole for a homicide committed by a juvenile. In Montgomery v. Louisiana, in 2016, the Supreme Court held that this applies retroactively to those who received such sentences prior to Miller.

“Brett Jones was convicted of murdering his grandfather; Jones was 15 when the 2004 murder occurred. He was given a mandatory sentence of life without parole. He argued to the court that there must be a finding of “incorrigibility” to justify such a sentence. The court, in a 6-3 decision, rejected this argument.

“Justice Brett M. Kavanaugh wrote the majority opinion and declared Miller only ‘required that a sentencer consider youth as a mitigating factor when deciding whether to impose a life-without-parole sentence. Miller did not require the sentencer to make a separate finding of permanent incorrigibility before imposing such a sentence.’… The court said a punishment of life without parole for a homicide committed by a juvenile is allowed so long as ‘the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.’…

“Simply put, Miller and Montgomery imposed great limits on the ability to impose life without parole for homicides committed by juveniles; the majority in Jones reinterprets the earlier decisions as requiring no more than the youth of the offender be considered as a mitigating factor in sentencing. Justice Sotomayor lamented, ‘How low this court’s respect for stare decisis [legalese for “precedent’] has sunk.’…

“The other recent case where the court considered stare decisis was Edwards v. Vannoy. A year ago, in Ramos v. Louisiana, the Supreme Court held that the Sixth Amendment requirement for a unanimous jury verdict applies in state courts. Two states, Louisiana and Oregon, allowed convictions by nonunanimous juries. The issue in Edwards v. Vannoy is whether this applies retroactively to those who were convicted by nonunanimous juries before the court’s decision in Ramos.

“Teague v. Lane, in 1989, held that a Supreme Court decision applies retroactively in two circumstances. One is if it puts a matter beyond the constitutional reach of the criminal law; in other words, a substantive change in the law that limits what the government can punish applies retroactively. The other is a ‘watershed’ rule of criminal procedure.

“It would seem that if anything is a watershed rule of criminal procedure, it would be the court’s decision in Ramos. In that decision, the court said a verdict taken from 11 jurors ‘[is] no verdict at all’ and described the Sixth Amendment right to a unanimous jury ‘vital,’ ‘essential,’ ‘indispensable’ and ‘fundamental’ to the American legal system.

“But the court in a 6-3 decision explicitly overruled that aspect of Teague and held that no longer is there an exception to allow retroactivity for watershed rules of criminal procedure. Justice Kavanaugh, again writing for the majority, declared, ‘New procedural rules do not apply retroactively on federal collateral review. The watershed exception is moribund. It must be regarded as retaining no vitality.’

“Justice Kagan wrote a dissent joined by Justices Breyer and Sotomayor and lamented the disregard for stare decisis: ‘In overruling a critical aspect of Teague, the majority follows none of the usual rules of stare decisis. It discards precedent without a party requesting that action. And it does so with barely a reason given, much less the ‘special justification’ our law demands.’” Which gives rise to the question as to exactly why did the Court accept an abortion rights case, given the clarity of the Roe vs Wade precedent that has held for decades, unless it intended to limit or reverse that long-standing precedent?

“The [Dobbs v. Jackson Women’s Health Organization] case concerns a Mississippi law that prohibits abortions after the 15th week of pregnancy… The [Supreme Court had earlier] said the ‘essential holding’ of Roe v. Wade is that states cannot prohibit abortions prior to viability, the time at which the fetus can survive outside the womb. That, at the earliest, is the 22nd or 23rd week of pregnancy. The Supreme Court, in granting review in the Mississippi case, said the issue before it is whether states can prohibit abortions before viability.

“If the court upholds the Mississippi law, then there is nothing to stop states from prohibiting abortions even earlier in pregnancy. Texas recently became the latest state to prohibit abortions once a fetal heartbeat can be detected, as early as the sixth week of pregnancy. Alabama has adopted a law that prohibits virtually all abortions.” Chemerinsky. A number of red states have already passed anti-Roe v Wade legislation in anticipation of the expected ruling.

The politization of the Senate confirmation process, leading to a highly politically aligned US Supreme Court, has simply moved a fading populist Republican Party, sensing that they are on the wrong side of history but trapped in this time warp because of the sentiments of its Trump-defined base, to resort to political distortions to insure that the rising majority of Americans cannot usurp the power of their White traditionalist Christian constituency. Their toolbox has placed priorities on voter suppression/nullification, disinformation, gerrymandering and politicizing the judicial system against the majority will. So far, they have been wildly successful.

I’m Peter Dekom and prepare for the continued erosion of civil and individual rights supported by a very right-wing Supreme Court.