With the resignation of Supreme Court Justice Anthony Kennedy, much attention and controversy has arisen. Kennedy was an independent thinker. He was a frequent, deciding “swing vote”. Lawyers experienced in oral argument before the Court likened their task to simply “arguing to Kennedy”. He was that independent.

Now it appears that the President remains committed to nominating a clear conservative. This will produce a shift in the Court. That seat will go from independent to conservative.

And, alas, the 1973 case of Roe v. Wade is reported to be at risk.  I will take no position for or against abortion— this is just about the doctrine of stare decisis. What in the world is that?

Roe v. Wade established a woman's constitutional right to privacy as giving her the power to decide to retain or terminate a pregnancy. For some time since, opponents of Roe have argued that it fails due to newly discovered evidence—- the sonogram — which was technology not yet invented in 1973. It shows the fetus in detail. Newly discovered evidence will frequently overturn previously thought final decisions. For example, the use of the relatively new technology of DNA has released innocent prison inmates.

Supporters of Roe v. Wade (e.g., Sen. Susan Collins [R-Maine]) point to the legal doctrine known as stare decisis. Stare decisis (a Latin term) means “let the decision stand”.  We follow precedent. If you show a judge a binding case, he or she will normally rule for you. (OK, the good judges). Stare decisis is a doctrine of judicial interpretation. It is not law. It is a tool to find and apply the law. As such, judges can overcome existing precedent, if good reason is found.

In numerous times past the Supreme Court has reversed itself. A good example is the Court's interpretation of the 14th Amendment to the US Constitution. In 1896, the Court in Plessy v. Ferguson said that is was ok to separate people by race so long as the accommodation was “separate but equal”. In 1954 in Brown v. Board of Education, the Court reversed that existing precedent, disregarded the doctrine of stare decisis and ruled that schools that were separate were not necessarily equal.

Will the reconstituted Court do the same with Roe v. Wade?  This will be a fascinating time in history.