May 20, 2022
The U.S. Supreme Court currently has six days scheduled to release opinions for its current term, and dozens of cases have been argued but not yet decided. Some involve tribal jurisdiction, gun laws, and capital punishment. There are also two important religious freedom cases still pending: (1) the dispute involving a coach fired over prayers after games, and (2) the dispute over Maine’s restriction on tuition payments to religious schools.
The interest in these particular cases is, however, dwarfed by the attention paid to another – the Mississippi abortion case.
This case illustrates an important concept in the court’s work: the treatment of previous court decisions.
There is a general rule governing the court’s treatment of prior decisions, called stare decisis. After the court has decided a particular issue, and then the same issue arises in a subsequent case, the reasoning in the prior case controls the new one. This rule preserves stability. When the courts treat similar situations the same, there is some predictability for those who might be affected by the decisions.
This approach carries some risks, though.
It can undercut the provisions the court is charged with applying. For example, a crucial aspect of our legal system is the primacy of written laws. These laws, of necessity, have to be applied to specific cases. When that happens, a court might misinterpret a provision, undercutting the purpose of the written law. If that misinterpretation is followed in subsequent cases, the written law could be diluted or even nullified.
A well-known instance of this is the decision in Plessy v. Ferguson, which interpreted the 14th Amendment to allow laws that segregate citizens by race. It is clear in hindsight that this interpretation was wrong.
There needs to be a way, then, to correct decisions at odds with the underlying laws being applied. The court can and does have options to prevent (or correct) this type of result.
First, the court can distinguish one case from a prior one in an attempt to soften the implications of precedent. Thus, as discussed recently here, the court ruled in some cases that schools segregated by race were not equal because of the quality of the schools, even though it did not disavow the principle of separate but equal.
Second, the court can directly overrule a prior decision, as the court eventually did with Plessy. (Although it was not in Brown v. Board of Education as is widely believed, but rather in 1983 in a case called Bob Jones University v. United States. Brown actually distinguished the facts in that case from those in the earlier Plessy decision.)
This is what the Supreme Court is trying to decide in Dobbs v. Jackson Women’s Health Organization. The court has three options: (1) It could follow prior decisions in Roe v. Wade and Planned Parenthood v. Casey and invalidate Mississippi’s law as a violation of a right to abortion; (2) it could distinguish the Mississippi law from the laws struck down in those cases so that the Mississippi law could be enforced, but Roe and Casey would remain in place and control future cases; or (3) it could also overturn the earlier decisions and allow the states to regulate abortion as they did prior to 1973.
News reports on a leaked copy of a draft of the court’s opinion in the case suggest that all three options are being considered by the justices. The draft suggests that at an early stage of the court’s consideration of the case, the majority of the justices supported the third option, one justice the second, and the rest the first.
The ultimate resolution of the case will be known only when the decision is formally issued in the next few weeks. Regardless of the result, the decision will likely be criticized for either abandoning or blindly following precedent. That we have this debate, though, means that we still have a common commitment to the importance of accurately understanding and properly applying the law, even if we don’t always agree about what that entails in each instance.
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