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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of these justices remain, giving conservative decisions like Citizens United and Hobby Lobby, why hasn't the SCOTUS repealed Roe v. Wade?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?

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    wouldn't a case have to be brought before them before they could 'repeal' it ? – user1450877 Sep 6 '14 at 14:45
  • I think this question is based on a faulty premise that the SC is particularly partisan when it comes to deciding cases. There's no doubt each judge has political leanings, but at the end of the day, they are beholden to the constitution and our legal system (laws, process, protocol, etc.). In other words, they don't necessarily make decisions purely based on political whims. Rather, they uphold the processes of the judicial system in this country. – user1530 Feb 3 '18 at 19:16
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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 Feb 4 '18 at 1:26
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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. – elliot svensson Oct 11 '18 at 14:41
  • 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 Nov 1 '18 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 May 19 '19 at 19:38
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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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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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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 Feb 5 '18 at 16:43
  • 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. – William Jockusch Feb 7 '18 at 0:58
  • Correct. But even for constitutional change, the responsible body is the legislature – MSalters Feb 7 '18 at 16:51
  • 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. – William Jockusch Feb 8 '18 at 4:32

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