Settled Law and the Supreme Court

With Roe v. Wade being overturned, there is a reasonable train of thought coming from opponents of the Hobbs decision — the Supreme Court just upended a half-century of legal precedent, and all of a sudden things are different. Yes, things change. And the Court can do that.

But is that a good thing? This is NOT a discussion about whether you like the outcome or not, set that aside. This is about whether it is a good thing that once five justices think settled law is no longer settled, we can swing a 350 million nation empire in any old direction. Stare decisis is desirable, because it makes the law predictable. However, nobody wants to live in a society where decisions are simply indelible, no matter what happens.

As we have just seen, the Supreme Court can simply play Cho Chabudai Gaeshi! with nearly anything at any time. But, maybe it shouldn’t be able to simply do a u-turn any time 5 out of 9 people think it sounds like a good idea.

So why not have a SCOTUS en banc?

Temporarily expand the Court any time it wants to reconsider “settled law.”

In the Courts of Appeal, all cases are assigned to random three judge panels. If there is a prior binding decision in that Court of Appeal, then the three judge panel must follow that decision, even if they disagree with it. If you want to challenge that prior decision, you can do so if you are able to convince the Court to hear the case en banc. For you non-lawyers, that means that all the judges in the Circuit re-hear the case. (In the 9th Circuit, since there are so many judges, you just pull a random 10 judges plus the Chief – with the theoretical “super en banc” (all 29 judges) still permissible, but I think it has never happened).

To have en banc Supreme Court decisions, we could go to each Circuit court of appeal, and grab the a random judge, or the Chief Judge, of that Circuit. We have 13 numbered geographic circuits, the DC Circuit, the Federal Circuit, and the Court of Appeals for the Armed Forces. That gives us 25 Justices to deliberate any decision that would upend “settled law.”

This would give us an avenue to fix mistakes, reverse decisions that do not stand the test of time, but without making every vacancy an existential crisis over abortion, guns, or whatever becomes the battle du jour.


Yes, this is a little adaptation of a small section of a recent post. But, I want to tease out this idea more.

2 Responses to Settled Law and the Supreme Court

  1. Mark Kernes says:

    Here’s an idea: How about impeaching any Supreme Court justice who lied under oath during his/her confirmation hearing, most notably in this case about Roe v. Wade being “settled law”? That might stop some of this “stare decisis is essentially meaningless” stuff.

  2. Thomas D Dial says:

    This is an interesting suggestion, although there plainly are some details to be filled in. But Dobbs surely would wind up on the schedule for such a rehearing.

    I am not sure whether it would make a lot of difference in outcomes, however. The federal appeals court judges likely represent a wider range of background and experience than the Supreme Court, but it is not immediately obvious – to me, a non-lawyer – that they are likely, on average to differ much from the Supreme Court justices in the outcomes they would favor.

    There is some merit it the implicit suggestion that rehearing a precedent changing case by a larger pool might lead to a decision better accepted publicly even if it is unchanged from the first hearing and decision. But I am inclined to think it would, at best, be transitory. Most of the public reaction to Dobbs is not that the precedent was changed, but what it was changed to; the objection is to the outcome. Looking back, Brown v. Board of Education seems similar, and the reaction also seems similar, and it strikes me as fantastic thinking to suppose the Southerners would have reacted much differently if the decision had been made by an enlarged court, or that the advocates of school desegregation would have accepted a loss that resulted from the larger court’s unwillingness to overturn Plessy v. Ferguson.

%d bloggers like this: