As soon as he was elected president, Donald Trump and his supporters began to target Roe v. Wade.
“The judges will be pro-life,” Trump declared on “60 Minutes” when asked about potential nominees.
In short order, Trump and then-Senate Majority Leader Mitch McConnell, White House Counsel Don McGahn and outside adviser Leonard Leo set out to change the face of the courts, and Trump ultimately appointed three Supreme Court justices – all of whom voted last week to overturn Roe.
The fact that Roe v. Wade had been on the books since 1973 wasn’t much of a deterrent to Trump or other conservatives.
After all, Justice Clarence Thomas, the conservatives’ legal titan on the high court, had made clear that he thought the legal doctrine of “stare decisis” – which literally means “stand by that which has been decided” – was overrated. For Thomas, the fact that a decision had been decided for a substantial period of time should not change a judge’s calculus if he thought the case had been wrongly decided in the first place.
Other judges have much more respect for the doctrine, which they say is essential because it represents the accumulated wisdom of judges, preserves stability in the law and promotes an evenhanded and consistent development of legal principles.
“Stare decisis doesn’t hold much force for you?” Judge Diane Sykes, who sits on the 2nd US Circuit Court of Appeals, asked Thomas at a 2013 event sponsored by the Federalist Society.
“Not enough to keep me from going to the Constitution,” Thomas replied. He was on the bench in dissent in 1992 when the court reaffirmed the essential holding of Roe.
McConnell on Monday expressed the same sentiment, speaking at a Rotary Club luncheon in Florence, Kentucky.
“Precedent is important. It is important,” the Kentucky Republican said. “But sometimes precedent is wrong.”
Last week, Trump’s three nominees, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, provided the necessary votes to overturn Roe in a 5-4 decision.
In doing so, they have forever changed the calculations a judge will consider when contemplating whether to overturn precedent.
“They have created a precedent for overturning precedent,” Louise Melling of the American Civil Liberties Union said in an interview Monday. She called the current court “radical” and is stunned that the majority could overturn a case that “is so fundamental to the lives of women and the lives of families.”
Melling pointed to the dissent penned by the court’s three liberals and said she hoped that one day the court would respect stare decisis again.
The dissent lambasted the majority for its “cavalier approach to overturning this court’s precedents.” It called stare decisis a “doctrine of judicial modesty and humility.”
“Those qualities are not evident in today’s opinion,” the liberal justices wrote.
For Melling, the majority opinion “deviates from the court’s prior understanding” of stare decisis.
But conservatives don’t share that view. Mike Davis, president of the Article III Project, believes the court’s opinion is a momentous victory. “President Trump won an upset victory over Hillary Clinton, in large part because he promised to appoint pro-life judges. He transformed the 5-4 Roberts court to the 5-4 Clarence Thomas Court, and we’re seeing monumental results now,” he said.
In the abortion opinion, Justice Samuel Alito provided two pages of footnotes highlighting other cases that have been overturned, in an effort to prove that stare decisis isn’t what he called an “inexorable command.” And he explained his criteria for overturning precedent.
Alito also wrote that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
But there’s no guarantee that future judges and justices will follow his guidelines, and legal experts say that going forward, justices will hesitate much less when voting to overturn prior cases.
If that happens, liberals especially are worried about more precedents that could fall, such as Obergefell v. Hodges, the 2015 decision that cleared the way for same-sex marriage.
Last weekend, LGBTQ activists took to the street, worried about Thomas’ concurring opinion in Dobbs that suggested other precedents – such as Obergefell – that rely on the same legal reasoning should be revisited.
Gay rights activists had largely hung up their demonstration clothes seven years ago because they believed they had won the cause.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote, referring to decisions on contraception, sodomy and same-sex marriage.
Obergefell himself told CNN in an interview that he is worried. “I guarantee you there are people out there who are starting to work on lawsuits to attack” the right to marry, he told CNN’s Jim Acosta.
Religious liberty and guns
On Monday, the conservatives and liberals got in another dispute about stare decisis, in a religious liberty case.
Justice Sonia Sotomayor, writing for the liberals again in dissent, accused the majority of failing to admit that it was overturning precedent that concerned the Establishment Clause.
Sotomayor suggested that the majority – weary of looking too aggressive – was trying to hide the ball.
For their part, conservatives believe that lower courts and liberals were the ones thumbing their noses at precedent for failing to properly follow the Supreme Court’s landmark opinion in District of Columbia v. Heller, which held, for the first time, that an individual had the right to keep a handgun at home for self-defense.
For years, Thomas urged his colleagues to jump in and correct the lower courts. But it was only after Barrett took the bench that the court had enough votes to take up the issue and decide it. Last week, for the first time in a decade, the court expanded gun rights.
“The same Democrats complaining about the Court overturning abortion precedent have no problem when liberal judges ignore Heller and other Second Amendment precedent,” Davis said.
But Thomas doesn’t always get his way. He dissented Monday morning when the Supreme Court declined to revisit a landmark First Amendment decision, New York Times v. Sullivan, leaving a higher bar for libel in place.
“I would grant certiorari in this case to revisit the ‘actual malice’ standard,” he wrote in dissent.
“New York Times and its progeny have allowed media organizations and interest groups ‘to cast false aspersions on public figures with near impunity,’ ” he added.
But Thomas, who often plants seeds for future majority opinions, may not have to wait too long.
CNN’s Ali Zaslav contributed to this report.
