Without getting into the politics of the issues, this is a legal question. Can the SCOTUS get up one day and decide that they now have enough votes to overturn a previous decision and just take it up without someone bringing a new, relevant, case?
No
No.
Stare decisis says no (even if someone does bring a case). But the Supremes will not do that on their own. Presumably though if there is any thought that the votes were there to overrule an earlier decision, someone would bring a case (and the Court would need to accept cert on it).
If that were the case, nothing would remain “settled law” because it could always be overturned. When the Supreme Court issues a decision, that’s it – unless another, similar case comes along later that the justices want to take. Eg, Dred Scott.
No, but not because of stare decisis IMO. The court doesn’t create its docket. Cases are appealed, which they then decide whether or not to hear (only a very small fraction of cases appealed from the lower courts are actually heard by the SCOTUS).
Having said that, there are frequently cases floating around out there that are purposefully positioned to present an opportunity for expansion of, or overturning of, a previous US Supreme Court ruling. So even though they can’t just “wake up one day,” it wouldn’t be too hard to effectively overturn a previous case by hearing a new one.
“No, but not because of stare decisis IMO. The court doesn’t create its docket.”
That’s right. The federal courts are empowered to decide “cases and controversies.” No case, no action. This is sometimes different in state supreme courts. Their state constitutions may empower them to issue commentary on proposed laws or play some other role. The federal courts have hard limits.
No. There has to be a controversy. It comes from the Constitution. Here is a wiki describing that:
If you dig into Supreme Court decisions, there’s a lot of disagreement among the justices about what stare decisis means at the Supreme Court. (And to some extent what you think it means depends on whether there are a bunch of cases you want to overrule or not.) In general, I think it’s safe to say that most of the justices apply different standards to cases involving statutory vs. constitutional law. With a statute, if the Court gets it wrong, it’s relatively easy for Congress to enact new legislation to “reverse” the court opinion. That happens all the time, So most justices rarely if ever entertain an argument that they should reverse a statutory ruling, even if it seems clearly wrong. (Some may make exceptions for very broad statutes that essentially empower judges to make common-law type rules, like a lot of the antitrust legislation.) With Constitutional rulings, however, it’s almost impossible to amend the Constitution to correct the Court’s error. For that reason, justices are far more likely to consider overruling a precedent about the Constitution than about any statute. And they feel like they have more free of a hand with respect to rules of judicial administration that the judiciary controls in any event.
Any, yes, everyone is right: No federal court has jurisdiction to decide an issue which is not properly presented as a “case or controversy” involving real people.
This is a pretty interesting moment in the history of the Supreme Court. Between 1954 and 1968, the Warren Court overruled many hoary constitutional precedents, Plessy v. Ferguson not least among them. The conservatives of the day gnashed their teeth and complained loudly (while assuring everyone that they were not personally in favor of racial discrimination or illegal searches). From 1972 on, there has been a clear, if not always impregnable, conservative majority on the Court, and and legal conservatives have targeted for reversal many Warren Court rulings as well as the occasional non-conservative Burger Court decisions, like Roe v. Wade. In general, though, only a few of the conservative Justices – like Justice Thomas – have been enthusiastic about overruling precedent. So there have been many, many cases which have limited, rather than overruled, prior cases with liberal doctrine. Often very severe limitations. exceptions that effectively swallow the old rule whole and digest it until nothing is left (except you-know-what digestive byproduct). And relatively liberal justices have been screaming bloody murder about stare decisis.
Now all of a sudden, there is a prospect that the balance of the Court will shift fundamentally again. If Clinton becomes President, and especially if the Senate Republicans lose their majority or see it whittled down to a few seats. the Court a year or two from now could be radically different than the Court that opened the term just ended. There is a host of recent, controversial conservative precedent – starting with Citizens United and the Second Amendment cases – for which liberals will be gunning, so to speak. And radical conservatives, who have been poo-pooing stare decisis for years, will be rediscovering its timeless virtues.
Stare decis from what I can tell (and that is from someone who found I don’t mix well with the way the law works, so buyer beware) is more of a legal custom than it is a rigid rule (there is nothing in the constitution about it, for example). basically, it means that judges should show restraint in overturning long term law, and they should only do it (in my words) if they feel there is a strong, underlying constitutional reason to do so. Brown Vs Board of Ed overturning Plessy V Ferguson is a classic example, Plessy was over 60 years old when it was overturned. I believe it also involves where there have been rulings strengthening the original rules over the years, that as rulings accumulate it should in theory become harder to reverse a ruling. It does happen, Citizens United for example overturned well over 150 years of rulings about the nature of a corporation, whether it has the rights of people, which made that ruling something of a shock, given how long a chain of rulings supported the original notion that a corporation did not have the rights of individuals. Judges all claim to respect Stare Decis in their nomination hearings, but the reality is that many of them don’t in reality in their rulings.
To overturn an existing decision means, as others have said, that the court has to agree to hear a case, and then it has to have meaning in context of the original ruling ie those suing have to specify the constitutional issues involved (for example, with Citizen’s united, the opponents sued about the law, arguing it violated the right of political speech for corporations).
In the stack by my bedside table is a book called “Forcing the Spring”, a book by a NYT writer on the process by which the Hollingsworth v. Perry made its way to SCOTUS. While I haven’t read it yet, I did watch the author, Jo Becker, on C-Span’s BookTV when the book came out and found her account of how the case was developed and filed fascinating. If I remember correctly, Rob Reiner and his wife met with a CA advocate for gay rights and they funded and devised the strategy by which the plaintiffs were selected, the attorneys recruited (so interesting because of the partnership between Ted Olson and David Boies), and the case filed. I think the time frame was 5-6 years before the SCOTUS decision was reached in favor of the plaintiffs. I mention this to note that even though the Court may be eager to act on an issue as its composition changes, they have to wait quite some time for the cases to reach them. We know that there are justices who would love to overturn Citizens United, but they will have to wait for a case to reach them and some of them will likely be retired by that time.
The business of how the high profile cases reach SCOTUS is fascinating to me. There is a strong conservative base who has worked hard to not only recruit plaintiffs (ex: Abigail Fisher; Heller; etc.), but to fund law school for conservative young people in hopes of placing them in public service as prosecutors and judges to enact their agenda. I suppose there are some liberal groups involved in the same efforts, but they haven’t been as successful given the SCOTUS composition up to the loss of Justice Scalia.
Thank you for all the informative responses! This law stuff is muck to some of us non-lawyers. Anybody want to hypothesize how and what sort of case would allow the court to reconsider and overturn Obergefell v. Hodges? Since in this hypothesis the conservatives would have decided they had the votes to overturn, could they just vote to take any case even the most remotely related?
The challenge to overturning Obergefell would be that the plaintiff would have to show that s/he was injured by the law permitting same-sex marriage. That’s a tall order. Lawyers can certainly come up with novel theories (state legislators hamstrung by the ruling? Parents arguing their right to raise their kids in a traditional-marriage state?). So it’s hypothetically possible.
“could they just vote to take any case even the most remotely related?”
The Supreme Court’s choice to grant or deny certiorari (hear an appeal) is completely discretionary and unreviewable as far as I know. They can do whatever they want with the cases that reach them from the lower courts.
@hanna-
It is unlikely that the court would even grant cert on someone challenging their decision on same sex marriage,at least not until there is a change in the court. It was a 5-4 decision, and Scalia was on the losing side, so the 5 who concurred would not grant cert, and I suspect Roberts would not want to revisit it (I don’t know about Alito, Thomas might, though).
I believe you are correct that for such a case to be taken on, the plaintiff would have to prove harm, the problem being that in both the Prop 8 case and this one the plaintiffs admitted that the only basis for denying same sex marriage was religious in nature, they admitted they couldn’t show harm, and I doubt since same sex marriage was passed they can show any harm from it. I have heard in some quarters talk that if we can get another couple of conservative judges on the court that they will then try again, but I strongly doubt by the time that happens, given the contention with judges (put it this way, if let’s say the GOP candidate wins and some judges retire or die, I doubt there will be enough votes in the Senate to confirm, especially with what happened with the current opening where the GOP refused even to consider a candidate, the Democrats are going to dig in, too). By the time that could happen, same sex marriage will be settled law and if they try and overturn it, it likely would be political suicide…so I doubt it will be.
Just to be difficult, yes, SCOTUS “could” [theoretically] willy-nilly decide to overrule a prior case, because there is no higher court to overrule such a decision, but (a) it would violate all the precepts noted previously, (b) it might well be grounds for impeachment, and © the other branches of government would be free to ignore the ruling, since SCOTUS has no enforcement power unless the executive and legislative branches accept the validity of a ruling. So … not ever gonna happen – except maybe in an Allen Drury-type novel.
I really appreciate those of you who are lawyers weighing in. It’s frustrating when you suspect that non-lawyers are just making up stuff to participate in the conversation.
Hijacking this thread with another SCOTUS question (it’s sort of on topic). For all the lawyers here: what was the liklihood that the Court would have granted cert in Tom Brady’s case? Any opinions? I know his case involved labor law and collective bargaining issues and whether the actions of the NFL Commissioner were appropriate, but is that an issue for SCOTUS? Did Brady’s lawyer (Ted Olson) a former Solicitor General, who has often argued cases before the Court, tell Tom that appealing to SCOTUS wasn’t going anywhere? Seems Olson would have some sense of this.
If the Court had agreed to hear the case could it have temporarily put aside the suspension and allowed Brady to go ahead and play in the upcoming season since the Court isn’t in session until October and the decision would come even later?
One of the sports stations here in MA was saying (among other things) that the only football fan on the Court was Justice Thomas. Not sure that’s in Brady’s favor since there are so many football fans who are Brady haters.