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Michael HawrylchakO’Connell & Aronowitz

STARE DECISIS AND THE SUPREME COURT

CLE Series on the 2019–20 Term

■ September 30, 2020: Big Picture Overview of the Term

■ October 7, 2020: Stare Decisis at the Supreme Court■ Ramos v. Louisiana

■ June Medical Services L. L. C. v. Russo

■ October 29, 2020: Justice Gorsuch and the Future of Textualism■ Bostock v. Clayton County

■ McGirt v. Oklahoma

■ November 5, 2020: The Supreme Court and Religious Freedom■ Espinoza v. Montana Dept. of Revenue

■ Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

■ Our Lady of Guadalupe School v. Morrissey-Berru

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Agenda

■ Part I: Understanding Stare Decisis

■ Part II: Setting the Scene

■ Part III: The Marks Rule

■ Part IV: Ramos v. Louisiana

■ Part V: June Medical Services L. L. C. v. Russo

■ Part VI: The Future

PART I:UNDERSTANDING STARE

DECISISWhen is precedent binding?

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Stare Decisis

■ Stare decisis: “The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.”

– Black’s Law Dictionary (10th Ed.)

■ Historical Development

– “Unwritten” English common law

– Official Reporters

– Opinions of the Court

– Printing and Communication Technology

– Parallels with Statutory Codification

Vertical Stare Decisis

■ Vertical Stare Decisis: The precedential effect of a higher court’s decision on courts lower in the judicial hierarchy.

– Predictive vs. Formalist approaches

■ Limitations on Vertical Stare Decisis

– Holding vs. Dicta

– Distinguishing / Narrowing from Below

– Anticipatory overruling

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Horizontal Stare Decisis

■ Horizontal Stare Decisis: A Court’s adherence to its own prior decisions

■ Purposes of Stare Decisis:– Efficiency– Reliance– Consistency – Humility– Legitimacy

■ Stare Decisis really matters when previous decision was wrongly decided

Horizontal Stare Decisis, cont’d

■ “Stare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision.”

■ Factors relevant to overruling:– quality of the precedent’s reasoning– consistency and coherence with previous or subsequent decisions– changed law since the prior decision– changed facts since the prior decision– workability of the precedent– reliance interests of those who have relied on the precedent– age of the precedent

■ Constitutional vs. Statutory Stare Decisis

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Empirical Findings

■ Overall, stare decisis has little effect on justices’ votes

– Almost always invoked to bolster argument on the merits

■ Perpetual dissents are the norm

■ Votes diverging from prior decisions exist, but are rare

– Justice Stewart: Griswold v. Connecticut (1965) vs. Roe v. Wade (1973)

■ The Roberts Court overturns precedent at a significantly lower rate than the Warren and Burger Courts, even when accounting for the smaller caseload

■ Selection effects limit any empirical analysis

PART II:SETTING THE SCENE

Stare Decisis in the Current Supreme Court

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2018–19 Term: An Extended Conversation■ Franchise Tax Board of California v. Hyatt

– Breyer dissent: “Today’s decision can only cause one to wonder which cases the Court will overrule next. “

■ Gamble v. United States– Thomas concurrence: “[W]e should not invoke stare decisis to uphold

precedents that are demonstrably erroneous.”

■ Knick v. Township of Scott– Kagan dissent: “Well, that didn’t take long. Now one may wonder yet again.”

2018–19 Term: Stare Decisis Dodges

■ Precedent Already Overruled:– Herrera v. Wyoming: Holds that Minnesota v. Mille Lacs Band of Chippewa Indians

(1999) effectively overruled Ward v. Race Horse (1896).

■ Precedent Ignored:– American Legion v. American Humanist Association: Doesn’t apply the Lemon test

while Justices argue over its survival.

■ Precedent Redefined:– Kisor v. Wilkie: Auer deference survives “maimed and enfeebled — in truth,

zombified.”

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Justice Kagan

■ Most consistent voice for strong stare decisis

■ Least likely to vote to overturn precedent: 31% of cases challenging precedent

■ Kimble v. Marvel Entertainment (2015)

– Refused to overturn longstanding precedent invalidating contracts for payment of royalties beyond the patent expiration date.

– “Respecting stare decisis means sticking to some wrong decisions.”

– “To reverse course, we require as well what we have termed a ‘special justification’ — over and above the belief that the precedent was wrongly decided.”

Justice Thomas

■ Strongest rhetorical voice against strong stare decisis

■ Votes to overturn in 53% of cases challenging precedent

– Justice Gorsuch leads the Court at 75%

■ In the last two years has called for the reconsideration or overruling of numerous longstanding precedents, including:

– Gideon v. Wainwright (1963)

– New York Times Co. v. Sullivan (1964)

– Roe v. Wade (1973)

– Strickland v. Washington (1984)

– Batson v. Kentucky (1986)

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PART III:THE MARKS RULE

How should courts deal with fractured decisions?

Marks v. United States (1977): Background

■ The Supreme Court’s shifting definitions of obscenity: – Roth v. United States (1957): “to the average person, applying contemporary

community standards, the dominant theme of the material taken as a whole appeals to prurient interest."

– Memoirs v. Massachusetts (1966) (3-Justice plurality): “the material is utterly without redeeming social value”

– Miller v. California (1973): “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

■ Can the standard from Miller be applied in a prosecution for conduct that occurred after Memoirs but before Miller?

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Marks v. United States (1977): The Result

■ The Marks rule: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”

■ Result in Marks: Retroactive application of the Miller standard violates the ex post facto clause.

Lower court application of Marks

■ What are the “narrowest grounds”?

– Logical Subset

– Median Justice

– Nose-counting

■ Academic commentators have proposed additional interpretations

■ Deep, long-standing circuit split and intra-circuit inconsistency

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Marks at the Supreme Court

■ The Supreme Court is not bound by its own prior decisions

■ Interpreting prior fractured decisions

– Expressly decline to apply Marks

– Ignore and redecide

– Declare Marks opinion without analysis

■ Issuing new fractured decisions

– No guidance on Marks opinion

– Argument over which opinion controls

Hughes v. United States (2018)

■ Freeman v. United States (2011) resulted in a 4–1–4 split concerning the application of the Federal Sentencing Guidelines.

■ The circuits split on which opinion in Freeman was controlling under Marks.

■ Hughes involved the same issue and expressly asked the Court to clarify the Marksissue.

■ The Court dodged Marks and redecided the sentencing issue, this time 6–3.

■ Sotomayor: “I continue to believe that my Freeman concurrence sets forth the most convincing interpretation . . . [b]ut I also acknowledge that my concurrence precipitated a 4–1–4 decision that left significant confusion in its wake.” “I therefore join the majority in full because doing so helps to ensure clarity and stability in the law.”

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Thompson v. Hebdon (2019)

■ Randall v. Sorrell (2006)– Fractured 6-3 decision; Breyer plurality decision finds campaign contribution limits

unconstitutionally low

■ Thompson v. Hebdon (9th Cir. 2018)– “Randall is not binding authority because no opinion commanded a majority of the

Court.”– Relies on earlier Ninth Circuit decision applying “logical subset” approach to

Randall

■ Thompson v. Hebdon (2019) (per curiam)– “The court below declined to consider Randall ‘because no opinion commanded a

majority of the Court,’” but “Courts of Appeals from ten Circuits have, however, correctly looked to Randall in reviewing campaign finance restrictions.”

– Doesn’t cite or mention Marks.

PART IV:RAMOS V. LOUISIANA

How much weight does a fractured precedent deserve?

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Apodaca v. Oregon (1972)

■ Long line of precedents held that federal criminal juries must reach a unanimous verdict.

■ Duncan v. Louisiana (1968): Sixth Amendment right to trial by jury in criminal cases is applicable to the states.

■ Does the jury unanimity requirement apply to state criminal juries?

Apodaca v. Oregon, cont’d

■ 4-Justice plurality decision:– Rejects jury unanimity requirement in state or federal court.

■ Justice Powell concurrence in the judgment:– Endorses longstanding unanimity requirement for federal juries– Unanimity requirement does not apply in state courts– “Dual-track incorporation”

■ 4-Justice dissent:– Unanimity requirement applies in both state and federal courts

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Ramos v. Louisiana (2020)

■ Only Oregon and Louisiana continued to allow non-unanimous criminal juries

– In 2018 Louisiana enacted jury unanimity requirement

– Continued to defend prior convictions under non-unanimous rule

■ Direct challenge to Apodaca v. Oregon precedent

Ramos v. Louisiana: Majority Opinion

■ Opinion by Justice Gorsuch– Joined in full by Ginsburg, Breyer, in part by Sotomayor, Kavanaugh

■ Sixth Amendment requires unanimity– Rejects functionalist inquiry into jury characteristics

■ Sixth Amendment applies fully to the states

■ Stare Decisis factors weigh in favor of overruling Apodaca

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Ramos v. Louisiana: Gorsuch plurality

■ Joined by Ginsburg, Breyer, in part by Sotomayor

■ Court has been inconsistent in treatment of Apodaca

■ Louisiana does not argue that Apodaca is binding

■ Rejects the “dubious proposition: that a single Justice writing only for himself has the authority to bind this Court to propositions it has already rejected.”

■ “[N]o case has before suggested that a single Justice may overrule precedent.”

■ The Marks rule does not identify a controlling opinion in Apodaca

■ Apodaca’s “result” cannot be divorced from its reasoning.

Ramos v. Louisiana: Sotomayor concurrence■ Declines to join the portion of Gorsuch’s opinion denying that Powell’s opinion in

Apodaca is controlling.

■ “Apodaca is a universe of one — an opinion uniquely irreconcilable with not just one, but two, strands of constitutional precedent well established both before and after the decision.”

■ Stare decisis should have less force in cases concerning constitutional protections, as opposed to cases involving property or contract rights.

– The Court has often overturned precedents to provide greater protections in criminal procedure cases.

■ Emphasizes the racist origins of Oregon and Louisana’s non-unanimous jury rules.

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Ramos v. Louisiana: Kavanaugh concurrence■ “[I]n just the last few Terms, every current Member of this Court has voted to

overrule multiple constitutional precedents.” “[S]ome of the Court’s most notable and consequential decisions have entailed overruling precedent.”

■ Court’s application of stare decisis has been inconsistent

■ Kavanaugh’s three-part inquiry:

– Grievously or egregiously wrong

– Significant negative jurisprudential or real-world consequences

– Does not unduly upset reliance interests

■ Apodaca’s result is binding precedent, though application of Marks is unclear

■ Overruling Apodaca is justified under three-part inquiry

Ramos v. Louisiana: Thomas concurrence■ Stare decisis should turn solely on whether the prior decision was demonstrably

erroneous. Reliance interests are not relevant.

– Court’s precedents holding that the Sixth Amendment requires jury unanimity are not demonstrably erroneous.

– Court’s due process incorporation precedents are demonstrably erroneous.

■ The Sixth Amendment jury right is incorporated against the states under the Fourteenth Amendment’s Privileges or Immunities Clause.

– “I cannot understand why the Court, having decided to abandon Apodaca, refuses to correctly root its holding in the Privileges or Immunities Clause.”

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Ramos v. Louisiana: Alito dissent

■ Joined by Roberts and Kagan

■ “I would not overrule Apodaca. Whatever one may think about the correctness of the decision, it has elicited enormous and entirely reasonable reliance.”

■ Rejects relevance of racist origins of jury non-unanimity.

■ Mocks idea that Apodaca was not a precedent: the result in Apodaca was binding.

■ Marks is still good law and refutes the idea that a majority opinion is necessary.– Powell’s concurrence was binding under Marks.

■ Defends reasoning in Apodaca plurality and Powell concurrence.

■ Argues that reliance interests are strong. (Not joined in part by Kagan)

PART V:JUNE MEDICAL SERVICES

Abortion and Stare Decisis

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Roe v. Wade (1973)

■ Challenge to Texas law prohibiting abortions except to save mother’s life

■ 7-Justice Majority Opinion by Justice Blackmun

■ Established abortion as fundamental right

■ Trimester framework:

– 1st trimester: governments cannot prohibit abortions

– 2nd trimester: governments can require reasonable health regulations

– 3rd trimester: abortions can be prohibited entirely ■ Subject to exception when necessary to save the life or health of the mother

Planned Parenthood v. Casey (1992)

■ Challenge to five Pennsylvania abortion regulations:

– Informed Consent

– Spousal Notification

– Parental Consent

– Medical Emergency Exception

– Reporting Requirements

■ Result: Spousal Notification requirement held unconstitutional; Other four regulations survive

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Casey: Plurality Opinion (O’Conner, Kennedy, Souter)■ The “essential holding of Roe” is affirmed on the basis of stare decisis.

■ Trimester framework replaced by viability-based standard:– Pre-viability: government can regulate in the interest of fetus, but cannot

impose undue burden on woman seeking abortion– Post-viability: government can regulate or prohibit abortion unless necessary to

preserve life or health of mother

■ Undue burden: Regulation with the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus

■ Scalia dissent: “I confess never to have heard of this new, keep-what-you-want-and-throwaway-the-rest version” of stare decisis.

Whole Woman’s Health v. Hellerstedt(2016)■ Challenge to two Texas laws regulating abortions:

– Admitting privileges requirement

– Ambulatory surgical center requirement

■ Breyer Majority opinion (joined by Kennedy, Ginsburg, Sotomayor, Kagan)

– Regulations do not provide any health benefits sufficient to justify the burdens they impose.

■ Thomas dissent:

– Accuses majority of rewriting Casey to effectively impose heightened scrutiny by requiring a balancing of benefits and burdens.

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June Medical Services L. L. C. v. Russo(2020)

■ Louisiana enacted admitting privileges law substantively identical to the Texas law held unconstitutional in Whole Woman’s Health.

■ Fifth Circuit Court of Appeals upheld the law, distinguishing Whole Woman’s Health on the basis of factual determinations specific to Louisiana.

■ Framed as a case seeking to overturn Whole Woman’s Health.

June Medical: Breyer plurality

■ Fact-heavy analysis applies the standard from Whole Woman’s Health and holds the admitting privileges statute constitutionally invalid.

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June Medical: Roberts concurrence

■ “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”

■ “Stare decisis principles also determine how we handle a decision that itself departed from the cases that came before it. In those instances, remaining true to an ‘intrinsically sounder’ doctrine established in prior cases better serves the values of stare decisis than would following the recent departure.”

■ All parties to the case agree that the Casey undue burden standard governs. Whole Woman’s Health claimed to be applying Casey.

■ The Whole Woman’s Health balancing test is inconsistent with Casey. The Court should return to the Casey standard.

■ “Stare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law. The Louisiana law burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous.”

June Medical: Thomas dissent

■ Roe v. Wade is “grievously wrong for many reasons” and should be overruled.

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June Medical: Alito dissent

■ Criticizes Roberts for invoking stare decisis to follow Whole Woman’s Health while simultaneously voting to overrule Whole Woman’s Health.

■ Casey supplies the governing legal standard.

■ Under the Casey undue burden standard, the admitting privileges law should survive.

■ Whole Woman’s Health was heavily fact dependent and cannot dictate the results here where the factual situation is substantial different.

June Medical: Gorsuch dissent

■ The results in heavily fact-bound cases are not binding on later disputes:

– “[W]hile the law binds everyone equally, parties are normally entitled to the chance to present evidence about their own unique factual circumstances.”

■ The plurality’s standard provides little guidance for future cases

■ Criticizes Roberts concurrence for its treatment of stare decisis.

■ Argues that Roberts misapplies the Casey undue burden standard.

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June Medical: Kavanaugh dissent

■ Notes that five members of the Court reject the Whole Woman’s Health balancing test.

■ Argues that the factual record is insufficient to determine whether the admitting privileges law will create a substantial obstacle to obtaining abortions.

New Circuit Split

■ Whole Woman's Health v. Paxton (5th Cir.)

– Applying “logical subset” test, June Medical has no Marks opinion, therefore Whole Woman’s Health is the governing law.

■ Hopkins v. Jegley (8th Cir.)

– Applying the median justice approach to Marks, holds that the Chief Justice’s opinion in June Medical is controlling.

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PART VI:THE FUTURE

More Questions than Answers

The Future of Roe and Casey

■ In June Medical, Louisiana did not squarely ask for Roe or Casey to be overruled.

■ Only Justice Thomas is on record calling for the overruling of Roe and Casey.

■ Where will Chief Justice Roberts line up in future cases involving different abortion restrictions?

■ Will Chief Justice Roberts continue to endorse a strong version of stare decisis?

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Justice Amy Coney Barrett?

■ Chief Justice Roberts would likely no longer be the median Justice.

– Justice Kavanaugh would be the likely median vote on many issues.

■ Judge Barrett has written extensively about stare decisis, endorsing the Court’s prevailing approach to precedent.

Q & AMichael Hawrylchak

O’CONNELL & ARONOWITZ, P.C.mhawrylchak@oalaw.com

518-462-5601

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Additional Resources Part I: Understanding Stare Decisis Stare Decisis: Rhetoric and Reality in the Supreme Court by Frederick Schauer: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3329049 Empirical SCOTUS: https://empiricalscotus.com/2020/07/06/precedent/ https://empiricalscotus.com/2018/11/28/strength-of-precedent/ Part II: Setting the Scene Franchise Tax Board of California v. Hyatt: https://www.supremecourt.gov/opinions/18pdf/17-1299_8njq.pdf Gamble v. United States: https://www.supremecourt.gov/opinions/18pdf/17-646_new2_1an2.pdf Knick v. Township of Scott: https://www.supremecourt.gov/opinions/18pdf/17-647_m648.pdf Herrera v. Wyoming: https://www.supremecourt.gov/opinions/18pdf/17-532_q86b.pdf American Legion v. American Humanist Association: https://www.supremecourt.gov/opinions/18pdf/17-1717_j426.pdf Kisor v. Wilkie: https://www.supremecourt.gov/opinions/18pdf/18-15_9p6b.pdf Kimble v. Marvel Entertainment: https://www.supremecourt.gov/opinions/14pdf/13‐720_jiel.pdf  Part III: The Marks Rule Marks v. United States: https://tile.loc.gov/storage‐services/service/ll/usrep/usrep430/usrep430188/usrep430188.pdf  Hughes v. United States: https://www.supremecourt.gov/opinions/17pdf/17-155_new_4f15.pdf Thompson v. Hebdon: https://www.supremecourt.gov/opinions/19pdf/19-122_k536.pdf Essay on Thompson v. Hebdon: https://www.countingto5.com/thompson‐v‐hebdon‐guidance‐on‐the‐marks‐rule/

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Academic Articles: https://www.stanfordlawreview.org/print/article/questioning‐marks/ https://harvardlawreview.org/2019/05/beyond‐the‐marks‐rule/   Part IV: Ramos v. Louisiana Apodaca v. Oregon: https://tile.loc.gov/storage‐services/service/ll/usrep/usrep406/usrep406404/usrep406404.pdf  Ramos v. Louisiana: https://www.supremecourt.gov/opinions/19pdf/18-5924_n6io.pdf Part V: June Medical Services L.L.C. v. Russo Roe v. Wade: https://cdn.loc.gov/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf Planned Parenthood v. Casey: http://cdn.loc.gov/service/ll/usrep/usrep505/usrep505833/usrep505833.pdf Whole Woman’s Health v. Hellerstedt: https://www.supremecourt.gov/opinions/15pdf/15-274_new_e18f.pdf June Medical Services L.L.C. v. Russo: https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf Whole Woman’s Health v. Paxton (5th Cir.): https://scholar.google.com/scholar_case?case=9533697645682252281  Hopkins v. Jegley (8th Cir.): https://scholar.google.com/scholar_case?case=9386538470965682535 Part VI: The Future Precedent and Jurisprudential Disagreement by Amy Coney Barrett: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291141 Stare Decisis and Due Process by Amy Coney Barrett: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=904362 Contact Information: Michael Hawrylchak O’Connell & Aronowitz, P.C. mhawrylchak@oalaw.com 518-462-5601