by: Don Samuel
Louisiana supplies to the rest of America the best jazz and the best beignets. But in this past term in the Supreme Court, Louisiana provided to us two cases that involved critically important Constitutional rights: (1) the right to insist that 12 people unanimously decide a person’s fate in a criminal case; and (2) the right to prevent the government from deciding the fate of a woman’s pregnancy. Ramos v. Louisiana and June Medical.
We are writing about another aspect of these decisions: the role and application of the principle of stare decisis: how the Court decides whether to adhere to a precedent that appears, at least on the surface, to determine the outcome of a particular controversy.
Not a term goes by that the Court is not asked to overturn, limit, or expand a previous decision. This blog post and a couple to follow, focus not so much on the Supreme Court’s method of deciding whether to overturn a precedent (though we begin with that topic), but the role of the trial courts in this process.
The factors that the appellate court considers (or claims to consider) in deciding whether to jettison a precedent include: (1) the soundness of the reasoning of the prior decision, including its consistency with related decisions, (2) the age of the precedent, (3) the reliance interests involved (economic, regulatory, or social interests that a litigant seeks to preserve), and (4) the workability of the prior decision.
There are several subsidiary factors, as well: (a) Was the prior precedent a unanimous decision or a plurality decision with the narrowest holding representing the view of only one concurring Justice? (b) Is the prior precedent really controlling on the issue presented in the case at hand, or is it dicta that only appears to govern the outcome? (c) are the facts in the current case distinguishable in a material way from the facts of the precedent that is offered as binding precedent? (d) Have the facts that prompted the previous Court to reach a decision changed, such that the precedent’s foundation is too obsolete: this could relate to the facts viewed on a micro level (when is a baby in utero viable?), or perhaps facts viewed more broadly (have advances in technology altered our view of the expectation of privacy? Or has the country’s tolerance for the death penalty waned to the extent that it views the death penalty as being “unusual,” and has the country’s tolerance of gay marriage changed)?
What role do lower courts play? To some extent, a potentially outcome-determinative role.
While deciding whether a precedent was “wrongly decided” (or as Justice Kavanaugh wrote in Ramos, “grievously wrong”), the lower court’s role is minimal. But in laying the groundwork for considerations of “workability” and “reliance interests” and “changed facts both large and small” the trial court’s foundational work is essential in providing the appellate court with the information it needs to decide those issues.
First, we consider Ramos and June Medical, though not on the merits, as much as on the approach the Court took to stare decisis.
In Ramos, the question was simple: In all courts, state and federal, in order to convict the defendant of a serious felony, must the jury’s verdict be unanimous? The precedent – Apodaca v. Oregon – in a fractured opinion, held that in federal court, a unanimous verdict was required, but in state court, the states could “experiment” and permit a conviction based on less than a unanimous verdict. In short, the decision held that the 12-person unanimous requirement that had previously been found to be part of the Sixth Amendment did not apply to the states. But Apodaca was an odd decision. Because four Justices held that the 12-person unanimous decision requirement did not exist in any court (state or federal) and was not enshrined in the Sixth Amendment; and four justices held that the 12-person unanimous requirement applied in both the state and federal courts. Justice Kennedy engaged in Solomonic jurisprudence and held that the unanimity requirement applied in federal court but not in state court. That decision, the “narrowest” holding, became the law of the land despite the fact that only one Justice on the Court reached that Goldilocks decision.
Ramos decided that the fact that only one Justice had reached that result was one of the reasons that the Apodaca precedent should be discarded. And for that reason, among several others voiced by other members of the current Court (including the apparent racist genesis of the non-unanimous verdict rule in Louisiana), Apodaca was jettisoned.
June Medical on the other hand, contains a lengthy discussion of the precedents that were at play. Roe v. Wade; Planned Parenthood v. Casey; and Whole Woman’s Health were prior decisions that the Justices considered in deciding two fundamental aspects of the stare decisis question: (1) should the court abandon or limit one or more of those decisions? (2) Did the recent Whole Woman’s Health decision actually govern the decision in June Medical? After all, Texas is Texas and Louisiana is Louisiana and just because the Texas law was found to be unconstitutional, based on the facts on the ground in Texas, this did not automatically mean that the exact same statute in Louisiana was unconstitutional because the facts on the ground in Louisiana were (or perhaps were not) different. After all, the fundamental principle of stare decisis is that “like cases should be treated alike” so the process must decide whether the “like” ingredient exists.
Ultimately, as we all know, after a painstaking review of the facts in Louisiana in Justice Breyer’s plurality opinion, the Court, joined by Chief Justice Roberts in a concurring opinion, held that Whole Woman’s Health was factually indistinguishable precedent that: (1) applied to the similar factual situation in Louisiana; and (2) should not be overturned. Justice Kavanaugh’s separate decision in June Medical sought to avoid the focus on “should precedent be overturned” and wrote that more fact-finding was necessary to determine whether the facts in Whole Woman’s Health were sufficiently “like” the facts in June Medical so as to demand that the like cases be treated alike. Thus, in June Medical the role of the lower court cannot be overstated. Absent the thorough fact-finding upon which Justice Breyer relied, there is no telling where June Medical would have landed.
Next post will consider some of the recent precedent-busting decisions in Georgia and then will consider in more detail the role of the trial courts in providing the appellate courts with the information they need to decide whether precedent applies to the dispute at issue in the case at hand; and whether the facts writ large or small, should alter the appellate court’s view of what the holding should be and whether the precedent should be abandoned.