Are there any explanations about US Supreme Court reversing decades old past decisions now?

Question

According to CBS News:

The Supreme Court on Thursday ruled that race-conscious admission policies of Harvard College and the University of North Carolina violate the Constitution, bringing an end to affirmative action in higher education in a decision that will reverberate across campuses nationwide.

This comes relatively soon after the US Supreme Court unwound the constitutional right to abortion:

In its last term, the Supreme Court reversed its landmark decision in Roe v. Wade, unwinding the constitutional right to abortion recognized since 1973.

Both these decisions reverse decades-old laws. Are there any explanations about why change them now?

As a side note, banning affirmative action is quite far from being popular.

Answer 1

Three recent appointments to the court in the same direction, coupled with significant support for these changes.

(Support against these changes is also significant.)

A single presidential term was enabled to fill 3 Supreme Court vacancies (one of which vacated the previous term). In a 9-person body, that is a very large swing.

Also note that neither decision came out of nowhere.

Dobbs (Abortion) has been the highest political issue for an absolutely huge (but not majority) segment of the population ever since Roe v Wade. There are whole organizations that exist either solely or primarily to ban abortion. It was a clear goal of the campaign for the president who appointed those judges. And it was clear that the appointed judges would overturn it. Since the third of those judges was seated, this was an expected ruling.

Affirmative Action was also not much of a surprise. Even before the judges discussed above were put on the Court, the Supreme Court has hemmed in and limited Affirmative Action. Whether it's a good thing or not, there is a strong argument that it conflicts with the 14th amendment, which has been previously discussed.

Answer 2

An objective and definitive reason may be elusive, as there are many distinct and also interlocking factors, but I would tend to point towards the following.

The ideological lean of the court has swung to solidly conservative for the first time in decades and is now in a 6-3 strongly right balance (though mind not every decision splits this way or reflects any particular political ideology, and even when it does it's not always the same 6 justices in the majority). A slight 5-4 moderately conservative lean was present for some time before that, but preceding that were the Warren and Burger courts, which were, for the most part, some of the most liberal courts in American history. Even the Rehnquist and pre-Trump Roberts courts were arguably not as conservative as the average SCOTUS tends to be.

A number of the decisions being upended are attached to this liberal era of jurisprudence. A lot of conservative ire (both judicial and public) toward existing court precedents are also mainly concerned with precedents from that era. So these form a large block of targets that they desire reversals or major revisions for.

One of the consequences of the stronger right-leaning majority means the more piecemeal strategy of "salami slicing"—meaning small, incremental changes and rollbacks with decisions often providing roadmaps to how to get the next slice cut off—Roberts guided the court through with a narrow majority before now is no longer necessary to achieve a majority opinion. Roberts can no longer leverage himself as the deciding 5th vote in ideologically split cases in order to force this preferred strategy of his. Which, cynically viewed, is a sort of judicial strategy version of the old saying that if you increase the water temperature slowly enough, the frog won't know he's being boiled alive until it's too late. A strategy he prefers as he considers himself an institutionalist, and as a Chief Justice he has been concerned about the legacy the court he ostensibly leads will leave behind. The other 5 conservative jurists, however, largely don't seem to share this concern, and as they are often enough by themselves to form a majority Roberts has little control now over issues that split along conservative vs. liberal lines, and his options are usually to either write a meager one-person dissent about how he would have salami-sliced instead, or simply join the other 5 (as he often agrees with the end result, just not necessarily the speed or timing at which it is being achieved).

So tl;dr version: a 6-3 ideological split disfavors incremental changes, and the conservative members have by and large been chomping at the bit for literally decades (the youngest ones weren't even born yet, I think) to undo a certain collection of decisions and are now largely capitalizing on the opportunity to do so whenever possible. The specific timing of these decisions reflects the fact that this 6-3 lean was recently established, and once it existed many conservatives were eager to immediately start legislating and litigating with the intent to bring new challenges before it in hopes of reaping long sought changes they couldn't win through policy and elections alone.

Answer 3

Since you ask about affirmative action, it's worth noting that the Supreme Court upheld affirmative action in 2003, but the closing statement of the majority opinion was widely understood as having effectively put a deadline on the practice.

We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

So for one of the cases you names, it's not unusual then that the Supreme Court ended up overturning the practice roughly in line the time limitation (albeit five years ahead of schedule).

But ultimately, the nature of the court is that when cases ARE overturned, they tend to be at least a decade old. The Supreme Court is not in the habit of immediately overruling itself unless something is proven to be instantly unworkable or flawed. Usually overruled cases come after decades of legal wrangling or changes in the facts or social situation of the country.

This list of overturned SCOTUS cases is instructive. Going by the largest gap for each entry, Dobbs overturned Roe after 49 years. But the average gap is about 31 years (source: trust me, I did a spreadsheet). In 2019's Herrera v. Wyoming, a 5-4 court of mostly liberals overturned a 121-year-old precedent in favor of tribal rights!

Answer 4

Yes, there is a reason for it.

The confirmation of the Federal judges is conducted by the Senate, which is meant to be a way to gauge both

1. the judges' ability to understand and interpret the law (their professional qualifications) and
2. their personal preferences, in order to see what their judgement would end up being when there are multiple countervailing considerations, which make it possible for decisions to go either way.

Both of these have now been effectively removed. The 1st one has been replaced by (a) professional legal organizations making recommendations and by (b) judges' past judicial history. So this power has now been effectively delegated to other institutions (such as the American Bar Association).

The 2nd one, however, is much more problematic.

During the confirmations, the judges can no longer answer any hypothetical question about any hypothetical cases because of the judges' code of ethics. The reason behind it is that every case has its own nuances which make it different from every other case and judges are not supposed give hints on how they may rule based on some personal principles because it may unfairly effect potential litigants decision to press their case in court.

However, when the judges are being confirmed, they usually do get asked such questions, and they inevitably refuse to answer them because of their code of ethics. When it comes to famous cases, such as Roe v Wade, they re-assure everyone that they would not destroy the current legal regime by saying that "Roe v Wade is an established law." Until this court, there was no real reason to counter-argue that SCOTUS had the power to overturn such "established law." But SCOTUS didn't have a practice of doing so.

On a rare occasion this can result in a judge who rules the opposite of what everyone would expect. Souter, for example, was appointed by George HW Bush(R), but became known as a consistently left-leaning judge. Roberts was appointed by George W Bush(R), but has also made some calls heavily unliked by the Republicans (the Obamacare is probably the most famous such Roberts decision).

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This lack of ability to exclude judges based on their possible personal preferences was less of a problem until recently.

What made it worse was the removal of cloture rule with regard to the confirmations of SCOTUS judges. As long as the filibuster rule was in place (and confirmations required 60 out of 100 votes), the nominated judges had to be palatable to both sides of the isle. So, in fact, judges were confirmed by much wider margins.

The last 4 judges were confirmed with margins less than 60 out of 100. And 3 of them, made these recent decisions possible.

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So, how can this be fixed? Well, actually quite easily. Senate, as one of the 2 chambers of Congress has the power to establish its own rules. The rules would not likely fall within the power of review of any court because the Constitution gives the Senate such power in a very clear language. The Senate can create a rule suspending any judicial code of ethics during confirmation hearings if they interfere with the Senate's ability to evaluate the nominees. This would be a very reasonable rule. And it would take away the judges' ability to dodge questions about which precedent they would be willing to overturn.

It would also bind the judges to their answers. Should they ever overturn a case which they have promised not to, it would create a clear case for their impeachment. Such a case would not be clear now because they didn't technically lie. They had a legal way to dodge those questions. Technically, the judges can be charged with perjury, but such a case would likely not get anywhere. However, if they were forced to answer the questions and were held responsible for their answers, it would be much more likely that they would face some consequences for misleading the Senate during their confirmations.

Answer 5

If I may play the Devil's Advocate (just for the moment) and give the current Court the benefit of the doubt, the logic behind these reversals would be something like the following:

• The desired (idealized) goal is equality and liberty under the law, without regard to individual differences
• The various laws and precedents coming under question — affirmative action, abortion, eventually racial gerrymandering, gay rights, etc — were meant as stop-gaps to counter long-standing problems of oppression and bigotry that infuse US cultural history
  • in other words, the intentions were to forcibly level the playing field so that people who were not straight, white, and male were allowed entry into institutions and positions they were previously excluded from, with the idea that forced inclusiveness would lead to natural inclusiveness over time
• The legal/ethical issue is that these laws and precedents must eventually end, either because:
  • they succeed in naturally leveling the playing field by changing cultural attitudes, and thus are no longer needed, or...
  • they fail to naturally level the playing field through changed attitudes, and new social, legislative, or juridical solutions need to be attempted

Conservatives are prone to argue that the decades of forced leveling have had their effect, and now represent an unnecessary (or even onerous) imposition on the rights of individuals, businesses, institutions, and states to run things as they see fit. Liberals are prone to argue that systemic bias and coded (or not-so-coded) bigotry are still rife within US individuals, businesses, institutions, and states, which cannot yet be trusted to promote equality and freedom under the law.

I tend to agree with the Liberal position and think there will be a significant backlash against conservative politicians and justices for the Court's current actions. However, I do recognize that oppressed groups have developed far stronger political and social powers, largely due to that forced leveling through the previous generations. I'd have hoped the precedents would stand for another generation to ease the transition into a properly egalitarian society, but Americans seem not to like the easy path on things. C'est la vie...

Answer 6

First, some frame challenges:

According to CBN News:

I assume you mean "CBS".

The Supreme Court on Thursday ruled that race-conscious admission policies of Harvard College and the University of North Carolina violate the Constitution

They did no such thing. Harvard is a private entity, and not bound by the Constitution. The wording of one of the opinions was unclear on this, but while the majority found that the standards of the 14th Amendment applied to evaluating policies giving differing treatments based on race, they did not find that the substance applied. They found that the Civil Rights Act, a statute, applied to private colleges that accept federal funds. Congress is free to amend the statute to allow affirmative action.

Both these decisions reverse decades-old laws.

Roe was a court decision, not a law.

As for the question:

Conservatives have been chipping away at Roe for decades. While Casey prohibited "undue burden", the courts had been looking the other way as legislatures piled on ridiculous burden after ridiculous burden, clearly motived by an desire to prevent abortion rather than advance a legitimate government interest. Dobbs was a culmination of conservatives getting more and more conservatives onto the court. Trump's victory, his pandering to the anti-choice movement, and three vacancies during his tenure combined to allow Roe to be overturned outright.

The literal text of the Civil Rights Act prohibited affirmative action, but courts had allowed the general intent of promoting minority interests, along with questionable "diversity" arguments, to trump the literal meaning. The original argument for affirmative action has become rather threadbare. Johnson said of it "You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, 'You are free to compete with all the others,' and still justly believe you have been completely fair". That was more than 50 years ago. There are people applying to college now whose grandparents benefitted from affirmative action. We are no longer at a point analogous to the "start" of a race. At this point, it's hard to make a "black people need a jump start" sort of argument. With this also being combined with the more conservative justices, the court is no longer willing to ignore the literal wording.

Answer 7

The answer is easy: The overturns are the result of decades of strategic work by conservatives to achieve exactly that. The court overturned as soon as it had the supermajority to do so without any need to compromise.

Here is an excerpt from an article on Lithub. The article is in turn an excerpt of a book by Kathryn Kolbert, who argued Planned Parenthood v. Casey and co-founded the Center for Reproductive Rights, and Julie F. Kay, a lawyer and women's rights activist who has argued against Ireland’s ban on abortion before the European Court of Human Rights.

Beginning in the 1980s, with the political power of the Moral Majority and President Ronald Reagan as a strong and savvy ally, the anti-abortion movement launched its strategy. Its high-ranking supporters in the Senate confirmed a pipeline of ultra-conservative anti-abortion judges onto the lower courts nationwide, who were then short-listed for a Supreme Court nomination. One by one, they added anti-abortion conservative judges from this group onto the Supreme Court, beginning with Justice Thomas and followed by Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett. With a 6–3 majority in place by 2020, they now have surpassed the magic number five necessary to overturn Roe. The appointment of Justice Barrett positioned them to do so even without demonstrating the respect for precedent and procedural restraint previously needed to bring along Chief Justice Roberts, who prefers chiseling away at Roe rather than an outright reversal.