AuthorForsythe, Clarke D.


Stare decisis--whether to overturn precedent--involves three key questions: the identification of judicial error, the seriousness of the error, and the cost of fixing the error. To answer the three stare decisis questions, the Justices look at six primary factors, one of which is workability. Workability is a factor that virtually all of the Justices accept, at least in the abstract. Throughout its history, the United States Supreme Court has overturned precedent more than 230 times, and it does so at the rate of approximately two to three cases per term. (1) During the past several Supreme Court terms, stare decisis has become the subject of growing attention by justices, scholars, and legal commentators. (2) Much of this attention to precedent has been sparked by one controversial and unsettled decision: Roe v. Wade (3) One legal commentator claimed that every Supreme Court opinion touching on stare decisis was a pretext for the coming battle over Roe (4) Both the continuing validity of Roe and the proper role of stare decisis are pressing constitutional issues. (5)

In Justice Stephen Breyer's dissent from the Supreme Court's 2019 decision in Franchise Tax Board of California v. Hyatt (6) overturning Nevada v. Hall, (7) he queried: "Today's decision can only cause one to wonder which cases the Court will overrule next." (8) Breyer argued that Hall was a "well-reasoned decision that has caused no serious practical problems the four decades since we decided it," explaining that precedent should only be overruled if it is "obviously wrong." (9)

It is one thing to overrule a case when it "def[ies] practical workability," when "related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine," or when "facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification." (10) While Justice Breyer acknowledged the workability factor, he did not find the rule in the case unworkable.

What makes a rule unworkable? To date, no academic article has systematically compiled and analyzed Supreme Court decisions on workability. This article attempts to do just that by conducting the first survey of Supreme Court workability decisions. This survey reveals that there is no one Supreme Court opinion laying out a comprehensive doctrine of workability; rather workability is the product of an inductive, or case-by-case, analysis reached by a majority of the justices in a particular case. Workability is a broad label that encompasses many dimensions. Whether a precedent is or has become unworkable is a practical judgment that examines how a legal rule has impacted the Court, federal and state judges, legislators, and other stakeholders, including the American people.

Roe v. Wade is perhaps the quintessential example of unworkability; it is a decision that remains radically unsettled forty-seven years after it was decided. (11) The workability of Roe may be a critical factor in the Court's determination whether to overrule that case, and as such, the workability (or lack thereof) of Roe deserves closer examination. This Article attempts to provide an introduction both to the workability factor of stare decisis and workability as applied to Roe.

In Part I, this Article begins with a summary of the six factors of stare decisis and then examines workability in general and in the context of stare decisis specifically. This Article does this by presenting the first thorough survey of Supreme Court workability decisions to discern the key aspects of the Court's inductive workability doctrine. In Part II, this Article shifts to reasons why Roe v. Wade, in particular, is unworkable.


    1. Six Primary Factors of Stare Decisis

      Precedent is one of the major sources of direction and authority for judges. (12) Traditionally, when considering whether or not to follow or overturn a precedent, the Supreme Court looks at six factors of stare decisis: (1) whether the precedent is settled, (2) whether the precedent is wrongly decided, (3) whether the precedent is unworkable, (4) whether factual changes have eroded the original precedent, (5) whether legal changes have eroded the original precedent, and (6) whether reliance interests in the original precedent are substantial. (13) These six factors are focused on identifying error, the seriousness of the error, and the cost of correcting the error. Although all six factors are not present in every decision overruling precedent, each of the six have been repeatedly cited by the Supreme Court in its decisions considering stare decisis over the past half century. (14) For example, in Janus v. AFSCME, (15) the Court expressly cited all of the factors of stare decisis, except whether the precedent was settled, in deciding to overrule Abood v. Detroit Board of Education. (16)

      But whether a precedent is "settled" is the starting point for stare decisis. Stare decisis comes from the Latin phrase: "stare decisis et non quieta movere--to adhere to precedents and not to unsettle things which are established." (17) An unsettled precedent does not contribute to "the evenhanded, predictable, and consistent development of legal principles." (18) Leaving unsettled what is unsettled undermines rather than contributes to the rule of law. It demonstrates indecision by the courts. In short, stare decisis is about leaving settled precedents settled. (19) Oft-cited pragmatic concerns about overruling precedents--such as uncertainty, stability, reliance, and "the evenhanded, predictable, and consistent development of legal principles" (20)--depend on whether the precedent is settled. The application of a precedent without a reaffirmation of its foundation and reasoning does not make the precedent settled.

      Apart from the six factors of stare decisis, there appears to be the additional requirement of "special justification." Since the Court's 1984 decision in Arizona v. Rumsey, (21) most Justices have said that overruling a precedent requires "special justification," including Justice Alito, joined by Chief Justice John Roberts and Justice Brett Kavanaugh, in the Court's 2019 decision in Gamble v. United States. (22) While the factors of stare decisis seem to be aimed at the justification for overturning precedent, several Justices apparently require "special justification" as an additional factor necessary beyond the conclusion that the precedent was "wrongly decided," if the case involves "a long-settled precedent." (23) Justice Clarence Thomas questioned this position in his concurrence in Gamble, where he emphasized that the "wrongly decided" factor is of singular importance, especially in constitutional cases. (24) This reveals that the so-called conservative block is not in lock-step on stare decisis, and any discussion by the Justices on what is required to overturn precedent will be closely watched in future decisions involving stare decisis.

    2. The Workability of Legal Rules

      In general, the workability of a legal rule, regardless of its connection to stare decisis, is a critical issue of jurisprudence. (25) Legal rules endorse activities, interests, and rights; identify interests, separate them, and authorize their scope; bind personal and corporate behavior; define and weigh risk; and give direction to or prohibit action by persons and governmental officials. Thus, the workability of precedent recognizes that the legal rules of judicial decisions impact the lives of citizens and those who have to work under, follow, and obey them. Because workability recognizes the practical impact of judicial decisions, it may be one of the most important factors of stare decisis. Legal rules, whether statutes or judicial decisions, may be unworkable only in the light of experience, as they are applied to the facts of concrete cases, or, as the Court has repeatedly said, "unworkable in practice." (26)

      There are many reasons why a legal rule could be deemed unworkable. A legal rule can be unworkable if it is vague, imprecise, ambiguous, (27) or "too indeterminate to apply." (28) For example, Justice John Paul Stevens in Smith v. United States, (29) questioned the workability of the "contemporary community standards" test for obscenity established in Miller v. California because of the test's vague and imprecise nature. (30) Similarly, numerous Supreme Court decisions have questioned the clarity of the Armed Career Criminal Act of 1984 (ACCA), (31) because "the failure of 'persistent efforts ... to establish a standard' [by a federal statute] can provide evidence of vagueness." (32) Likewise, judicially-created rules, like statutes, may be unworkable if they fail to give people sufficient notice of what is required (flouting due process) or create incongruities in the law.

      Legal rules may be unworkable if they breed judicial confusion, fail to be useful in deciding future cases, become obsolete, or are abandoned by lack of use. For example, in American Legion v. American Humanist Association, (33) Justice Alito in his majority opinion noted that in many Establishment Clause decisions since Lemon v. Kurtzman, (34) "this Court has either expressly declined to apply the test or has simply ignored [the Lemon test]." (35) "This pattern is a testament to the Lemon test's shortcomings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them." (36) Pointing to the Court's failure to apply the Lemon test over decades, Justice Kavanaugh concluded in American Legion that the Lemon test is "not good law," explaining that he would replace the Lemon test with a "history and tradition test." (37) Echoing Justice Alito's criticism of Lemon in American Legion, Justice Thomas's concurrence referred to the Lemon test as "the long-discredited test," citing the...

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