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I'm ignorant of the judicial branch, and I have a question, which I would like answered irrespective of the "pro-choice" or "pro-life" debate and focused on the workings of the courts.

Given that for a period not too long ago six of the nine justices were Republican appointees, who I believe were tendentiously questioned beforehand to see that they were "pro-life" and toed the party line; and that now five of these justices remain, giving conservative decisions like Citizens United and Hobby Lobby, why hasn't the SCOTUS repealed Roe v. Wade?

I have a vague conception of how cases get to the Supreme Court, but from my understanding a heavily conservative state, like North Dakota, could pass a law banning all abortion, and a case challenging the validity of this law would be raised, and appeals courts would send it before the SCOTUS, which would choose to take it and make a ruling.

What is preventing this?

Comment: This question was asked in 2014. In 2022, a conservative majority SCOTUS indeed repealed Roe vs. Wade. However, from a historic perspective (pre 2022) this question still stands.

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    wouldn't a case have to be brought before them before they could 'repeal' it ? Commented Sep 6, 2014 at 14:45
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    Despite at one point 6 of the 9 justices being Republican appointees, there was not a conservative majority. Stevens and Souter became quite clearly liberal. O'Connor drifted liberal so that by the time should would have been the 5th conservative vote she was no longer conservative. The same has happened recently with Kennedy (he frequently sides with the conservatives but on the fundamental or most important issues he has started siding with the liberals).
    – Readin
    Commented Feb 4, 2018 at 1:26
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    Unfortunately, this question is now a frame-challenge.
    – CGCampbell
    Commented Jun 24, 2022 at 17:47
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    I started a discussion on Meta for how to handle questions like this one that are invalidated by subsequent events.
    – dan04
    Commented Apr 19, 2023 at 0:40
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    How is the question invalidated? If anything it's confirmed, which may be seen as a positive thing regarding Q&A. The close notice is wrong in any case. Commented Apr 19, 2023 at 5:39

6 Answers 6

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  1. You need a case. Judges can't just overturn a precedent because they feel like it. There must be an actual case that goes all the way up the chain. Most cases will be decided according to precedent, and you can only appeal by showing a procedural problem, an extenuating circumstance, or a precedent that wasn't considered or was applied inconsistently. You can't just say, "we didn't like the decision, and we are appealing." A lower court is bound by what has been decided before, and a case must originate there. Then an appeals court needs to find an issue, and only then does the Supreme Court get involved. (It is very very rare to skip the appeals process)

  2. Stare decisis (aka Precedent.) Courts hate deciding "new" things. A court prefers to show that they are just ruling the way they always have. Changing things unsettles everybody, so it takes something really egregious, like Brown v. Board of Education overturning Plessy v. Furgeson only after it became obvious that separate was never equal.

    If a justice votes to overturn, he is basically telling his successors, you can overrule me. That is highly undesirable. It negates the legacy you want to leave, and sows doubt about what the "law" actually is. Rule #1 on a court is this: be consistent. Follow precedent.

    Interestingly, the very link I used for stare decisis will point to Casey v. Planned Parenthood which is probably the closest the court will ever come to overturning Roe v. Wade

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  • Interesting to note that Planned Parenthood v Casey changed Roe v Wade, if by "Roe v Wade" you mean US jurisprudence on abortion rights. Before 1992, abortion was regulated according to Roe v Wade strictly by trimester, and after 1992 that was changed to the standard of viability. Commented Oct 11, 2018 at 14:41
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    Just a minor nitpick of reason 2: SCOTUS isn't subject to Stare Decisis as strictly as the other courts in the United States. They have, and do, overrule previous precident cases (there's some arguement if Fighting Words has been piece-mealed out of existence since it was first introduced by SCOTUS as it has been narrowed rather significantly. No use of Fighting Words doctrine in a SCOTUS case has been upheld since the initial case that used it.).
    – hszmv
    Commented Nov 1, 2018 at 19:19
  • A number of states are now enacting strong anti-abortion laws, in the hopes of getting prosecutions appealed to SCOTUS (they apparently think the current Court would be on their side). What likely procedural problem or extenuating circumstance could they be imagining that would allow them to make it that far?
    – Barmar
    Commented May 19, 2019 at 19:38
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    One tidbit that has been reported by observers of the Court: They tend to rule on procedural grounds if that option is available. For instance, when the Pledge of Allegiance was challenged (because of the two words under God), the court dodged the First Amendment issue by noting that the plaintiff lacked standing, and ruled against him on that basis.
    – EvilSnack
    Commented Mar 15, 2020 at 3:47
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    "Rule #1 on a court is this: be consistent. Follow precedent. " This may not be true. Roe vs Wade was overturned in the end. Commented Apr 19, 2023 at 5:40
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The Supreme Court can only decide actual "cases and controversies." They don't just issue opinions about the constitutionality of laws whenever they want to. In order for them to consider a case, someone must prove that they suffered actual harm. So the simplest answer is that the current conservative majority of the Court haven't ruled against Roe v. Wade because they've never had the opportunity to do so.

The less simple answer is that it's not certain that the anti-Roe block even has the votes. Justice Anthony Kennedy voted in the plurality of Planned Parenthood v. Casey that upheld Roe back in the '90s. It's well within the realm of possibility that he's changed his mind since then, given that he's been a fairly consistent vote in upholding restrictions on abortion. But when it comes to straight up overturning Roe, he's on the record as opposing it.

Also, you say the conservative justices "toe the party line," but last I checked the Defense of Marriage Act is no longer law and Obamacare still is. My guess is that the pro-life movement won't act until it's almost certain they have the votes.

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In a nutshell, what it took is not simply "Republican" judges, but

installing conservative justices prepared to reject the precedent [...]

Justice Alito’s majority opinion [endorsed by 4 other justices: Thomas, Gorsuch, Kavanaugh, and Barrett] not only sustained the Mississippi law but also said that Roe and Planned Parenthood v. Casey, the 1992 decision that affirmed Roe’s core holding, should be overruled.

Chief Justice Roberts had a somewhat more nuanced position wanting to only greenlight the law at stake (Mississippi wanted a 15-week deadline), but the other conservative justices said that given the spate of other state laws likely to reach the court subsequently, making this bold reversal was the best course. From the opposing side it simply looked like

“A new and bare majority of this court — acting at practically the first moment possible — overrules Roe and Casey,” they wrote, adding that the majority had issued “a decision greenlighting even total abortion bans.”


And if I'm to try to explain a bit how this came to be, three main elements are probably at play:

  • Better vetting of nominees inside the Conservative camp;

All five justices in the Casey majority were Republican appointees, a measure of how the world has changed since then.

[.... But] the justices who voted to overturn the right to abortion reflected something more particular: They were chosen for that specific task. Reagan ran in 1980 on a Republican Party platform that pledged to “work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life,” and every Republican presidential candidate since then has run on a similarly worded platform. (The only exception was Donald Trump’s reelection campaign in 2020, when the Republican National Convention adopted no platform, the party’s only platform being Trump himself. During the 2016 campaign, Trump said that if he got the chance to make Supreme Court appointments, Roe would be overturned “automatically.”) Of the seven justices appointed by Republican presidents since Reagan, only David Souter, named by President George H. W. Bush, failed to deliver; Souter, who retired in 2009, was part of the five-justice Casey majority. By contrast, Bush’s other nominee, Clarence Thomas, now the Court’s longest-serving member, has proved a banner-waving success. Not only has he spent his three decades on the Court in pursuit of Roe’s overruling, but his concurring opinion in Dobbs added revisiting the Court’s precedents on same-sex marriage and even on birth control to the Court’s to-do list.

  • Better poker-face in Senate hearings from the nominees themselves, avoiding their nomination ... being Bork-ed there by revealing their stance on Roe specifically. (As mentioned in the other piece, only Alito had taken an open stance on overturning Roe, but his [1985] statement was pre-Bork [1987], and in the context of applying for another job.)

  • Thirdly, the Senate became more partisan, passing nominations on a narrower majority (from the first source):

A political scientist would have been farsighted indeed to anticipate what happened to the Court from 2017 to 2020: that a president who lost the popular vote would manage to lock in a conservative supermajority with three appointments, all of them confirmed by the narrowest of margins—following the Republicans’ abolition of the filibuster for Supreme Court confirmations—by senators from states that collectively contain less than half the country’s population.

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    This answer leaves me wanting for more. The scenario in this question eventually became reality but the question is probably more about why not earlier, not why now. What has changed in comparison to past Republican majorities that already could have accomplished what has been now? This answer just states that something has changed. Commented Apr 19, 2023 at 6:31
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    @Trilarion: I've added some analysis elements to my answer, FWTW. Commented Apr 19, 2023 at 11:01
  • @NoDataDumpNoContribution it's worth noting that a majority of the Roe justices were appointed by Republican presidents, 5 of 9, and only one of them dissented from the court's decision.
    – phoog
    Commented Mar 1 at 9:43
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Given that for a period not too long ago six of the nine justices were Republican appointees

I think you mean seven of nine: John Roberts (by George W. Bush); John Paul Stevens (Gerald Ford); Antonin Scalia (Ronald Reagan); Anthony Kennedy (Ronald Reagan); David Souter (George H. W. Bush); Clarence Thomas (George H. W. Bush); Samuel Alito (George W. Bush). Note that Roberts and Alito replaced William Rehnquist (Richard Nixon) and O'Connor (Ronald Reagan) respectively. So Republicans had actually appointed seven of the nine justices as early as Thomas in 1991. And at that time, Democratic appointee Byron White (John F. Kennedy) was pro-life.

Stevens, O'Connor, and Souter have generally been counted in the liberal wing, particularly on abortion. They all voted to uphold Roe v. Wade. Kennedy is considered more of a swing vote and has voted to uphold Roe v. Wade, although he is more willing to limit it than the more liberal members of the court.

Prior to Scalia's death there were four pro-life justices, four pro-choice justices, and Kennedy. That had been true since O'Connor was replaced by Alito. It was also true before Ruth Bader Ginsburg (William Clinton) replaced White. Presumably it will be true again after Donald Trump appoints a replacement for Scalia.

Kennedy's abortion views are complex. While he might vote pro-life on the right case, he has supported pro-choice positions in the past. There is little reason to think that he is likely to significantly change the system he helped set up in the late eighties and early nineties.

That situation could change if Kennedy or one of the four more liberal justices was replaced by a more conservative justice. The three oldest justices are Ginsburg, Kennedy, and Stephen Breyer. Like Scalia (who had been the second oldest justice), they could be forced off the court by death or bad health. It's not entirely clear who Trump would appoint in that case. There's a list of potential replacements for Scalia, but he won't necessarily be limited by that list in subsequent appointments.

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  • "And at that time, Democratic appointee Byron White (John F. Kennedy) was pro-life": he was also that in 1973 when he dissented from the Roe decision. The Roe court had five justices appointed by Republican presidents and four appointed by Democrats; the decision was 7-2 with White and Rehnquist in dissent.
    – phoog
    Commented Mar 1 at 9:48
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A few years later, the question can be answered by looking at the reasons why it did eventually overturn Roe vs. Wade in 2022, and what had changed.

A New York Times article from Feb. 26, 2024 by a member of the Editorial Board reports the unease with which many legal scholars watch the workings of the current Supreme Court. The article quotes Prof. Barry Friedman from New York University who has co-written a coursebook about judicial decision-making.

He provided a criterion to evaluate decisions which overturn precedent. This was enlightening for me because — obviously — not all overturns are bad. The court must be able to revert decisions which do not suit a changing society any longer. But how can we tell the good ones from the bad ones? The criterion springs directly from the reason why, sometimes, overturning is unavoidable (emphasis by me):

When you combine overruling with no appreciable change or explanation other than that the membership of the court has changed, what you have is naked power.

The court overturned as soon as a majority of the judges was willing to do so. There is no other reason. This differs markedly from other decisions overturning precedent:

  • United States v. Darby, 1941, holds that federal work regulation is constitutional. Overturned Hammer v. Dagenhart, 1918, which left it to the states to outlaw child labor. FDR, New Deal, new times.
  • Brown v. Board of Education, 1954, holds that separate schools are not equal. Overturned the 60 year old Plessy v. Ferguson. Segregation was increasingly untenable in a modern 20th century society.
  • Lawrence v. Texas, 2003, holds that anal intercourse between men is a constitutional right. Overturns several older decisions. Society's judgement of sexuality in general and homosexuality in particular had changed too much to uphold old "sodomy" laws.
  • Obergefell v. Hodges, 2015, holds that two members of the same sex can marry. Again, society's views on homosexuality had changed so much that this step was logical.

In the Times article, the scholars generally observe that the judges decide stricter and more often along their political affiliation than was the case earlier. The judges are more partisan. Lip service aside, they do not feel committed to the greater good of the entire nation; they feel committed to their ideological camp and exercise their power to further their camp's agenda.

This is no coincidence: These judges have been appointed to the Supreme Court specifically for that purpose. In his campaign, Trump famously announced to appoint judges who would overturn Roe vs. Wade. He did not say he wanted judges who would wisely consider the greater good of the nation; he said he would appoint judges with a partisan agenda. He appointed, and they overturned.

The judges sit on the court because of the politicians who appointed them. These partisan politicians, in turn, have been elected by an increasingly partisan electorate. Repeatedly, especially in Republican primaries, candidates are elected who are partisan, fringe or outright lunatics, for example QAnon sympathizers. They often lose the general elections, but not always; a number of them make it to Congress.

Bottom line: An increasingly partisan electorate, many of which do not share a common reality with the other side of the political aisle, elects increasingly fringe and partisan politicians who are not committed to the greater good and are not willing to compromise. These politicians, in turn, appoint judges who are equally partisan, feel responsible only to their camp and are equally unwilling to compromise.

In the end, the spectacular overturning of Roe vs. Wade in 2022 does reflect a change in society. Ultimately, the partisan judges reflect a more partisan electorate.

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    But wasn't Roe vs. Wade a bad decision in the first place? "Right to privacy" was made up on the spot for the sake of contriving a justification. Are there any scholars who criticize both Roe vs Wade and its overturn? Commented Feb 29 at 18:39
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    @JonathanReez "made up on the spot": no. The Supreme Court had recognized a right to privacy at least since Griswold v. Connecticut, and implicit rights in general even earlier than that.
    – phoog
    Commented Mar 1 at 9:59
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The Supreme Court has had a Republican majority for the entire 45 years since Roe v Wade was decided. Under most people's definitions of "conservative", it has been a conservative majority for most of that time. One might reasonably conclude that Republican Presidents and Justices who say they want to see it over-ruled don't really mean it, at least not that strongly.

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    This answer is wrong, as shown in previous answers. What Presidents and Justices want is irrelevant, if it's not in their competency. (stare decisis). Note that legislators do have a tool to change the status quo. New legislation is not bound by older rulings. In fact it's not unheard of to explicitly state that a new law is intended to reverse the outcome of a previous court case. This is the correct procedure: the legislature is directly elected by the People.
    – MSalters
    Commented Feb 5, 2018 at 16:43
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    A decision that interprets the Constitution, which this was, can't be overruled by legislation, short of a Constitutional amendment. The Court could change its mind, if it wanted to. This is a case where the Constitution is not some sort of mathematical formula that has only one answer. Commented Feb 7, 2018 at 0:58
  • Correct. But even for constitutional change, the responsible body is the legislature
    – MSalters
    Commented Feb 7, 2018 at 16:51
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    But what they want is entirely relevant. If it weren't, all Justices would vote the same way every time. Here is a list of times they have decided to over-rule a prior decision. en.wikipedia.org/wiki/… They could just as easily over-rule Roe v. Wade, if they wanted to. And what Presidents want is also relevant, because the President appoints the Justices. Commented Feb 8, 2018 at 4:32
  • "Republican majority" There is not enough information to answer that right now (or in 2018). Roberts' and Kavanaugh's registration are unknowable (secret in their state) and three other conservatives don't have current registration.
    – gormadoc
    Commented Jul 13, 2022 at 18:34

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