Image Credits: @jtc on Unsplash (Unsplash License)

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Introduction 

Since Roe v. Wade was overturned in 2022, there has been increased skepticism surrounding Supreme Court decisions. As the nation’s highest court, SCOTUS should have the best legal judgment, but that does not mean they are immune to legal errors. Roe was a landmark decision, and the public now fears that the overturning of this case will lead to greater instability. The justices in Dobbs v. Jackson, the case that overturned Roe, explained their reasoning with five factors that now must be met before previous Supreme Court precedents can be overturned.

The main five factors that these justices discussed are (1) the nature of their error, (2) quality of reasoning, (3) workability, (4) possible disruptive effect, and (5) concrete reliance. When the Court overturned Roe, the justices used these five factors as a way to explain their reasoning as to why Roe was a bad precedent. Specifically, the Court explained that Roe’s jurisdiction has expanded beyond its original intentions, and that the federal-wide precedent no longer respects the Constitution and the definition of the Fourteenth Amendment. 

As the Court’s power grows and more precedents are called into question, these factors will become more important, and justices will refer to them more when deciding cases. These factors are easy to misinterpret, and it is important to explain them because they have the potential to drastically change American politics in the near future. 

As an example, this article will apply those five factors to a hotly debated case, McConnell v. FEC, which Citizens United v. FEC overturned. There is a possibility that the Court may reverse McConnell soon, and as such, it is important to look at the five factors as applied to this case to determine a potential outcome and the reasons why McConnell may be overturned.

The Five Factors of Stare Decisis

In Dobbs v. Jackson, the justices identified five “stare decisis” factors that could help explain why the original decision in Roe was flawed. In Latin, stare decisis directly means “to stand by things decided,” referring to the Court’s past written opinions and how each one had an impact on American law. These factors are now seen as discussion points that justices must consider when deciding whether to overturn existing precedent.  These five factors are “the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance”. These factors are evaluative measures that a justice can use to determine whether a precedent is “good law.” Good law indicates that a precedent still abides by the Constitution over time and that future Courts can use the precedent to decide a wide range of cases in a constitutional manner. 

“Nature of their error” 

The first factor is the “nature of the [Court’s] error”. This factor is the most basic. Essentially, it asks if the original decision could be considered a mistake or in violation of the law. For this factor, an “error” is when a lower court makes a decision that goes against the Constitution’s reasoning. When the Supreme Court confirms the lower court’s decision, it also approves that error. By overturning the flawed case, the Court can fix its mistake and recorrect interpretations of the law going forward. 

Quality of Reasoning

If the Court’s decision is not solely grounded in the Constitution or general United States law, the quality of the decision’s reasoning may be poor. In Dobbs, a justice argues that “Roe imposed on the entire country a detailed set of rules for pregnancy” that was not founded in Constitutional beliefs and was, therefore, overstepping the boundaries of American law. 

Workability

This factor is the most difficult to understand, but it is also the most important. Workability refers to “whether [the decision] can be understood and applied in a consistent and predictable manner”. This factor can refer to pronged tests, measurable factors, or general definitions as applied to the context of that case. A pronged test is unworkable if it does not easily work across a variety of cases or if it has inherent inconsistencies. The flawed decision is likely to be overturned so that these tests and definitions can be amended to be more readable. In Dobbs, the “undue burden” test was found to be difficult to understand, so the justices overturned Roe to rewrite the test and make it applicable to a wider range of cases. 

Possible disruptive effect 

This factor refers to the relationship between the contested case and previous or future precedent. If the existence of one precedent has impacted other decisions too significantly, especially in a way that deviates from Constitutional law, it is likely to be overturned to correct those incorrect interpretations. In Roe, the disruptive effect was considered too significant in future abortion cases, and Roe was influencing lower court decisions with unconstitutional opinions. When deciding new cases, lower court judges followed the Roe decision more closely than they followed the Constitution, creating a disruptive effect. While Roe was restricted to abortion, this pattern can be dangerous for less specific cases. The Constitution is important because it helps maintain the stability of American law on a federal, country-wide level. If courts begin to stray away from the Constitution and start following only precedent, American law will begin to look very different depending on what part of the country you reside in. Additionally, the law will look different depending on who sits as a justice, which undermines the central point that justices are meant to remain impartial by deferring to the Constitution. 

Absence of concrete reliance 

Finally, concrete reliance refers to the connection between the issue at hand (abortion and privacy) and how those issues are applied broadly across cases. Roe is technically an argument over the right to privacy, but the 4th Amendment claim is so far removed from the case’s actual question that it lacks significant reliance. The Roe decision would not aid in cases about property or search and seizure, which are more common. Since the reasoning used in Roe was too niche and only worked in a specific case (abortion), the justices overturned it to make the precedent more useful in the future. 

These five factors help justices justify overturning a case and are likely to be used more in the post-Roe era that we now find ourselves in. Most of these factors focus on pronged tests, which are factors that help a judge apply sections of the law to cases. These tests can then be used beyond the case in question and are the most important part of legal precedent. When determining whether or not to overturn a case, justices must look at pronged tests because those are the factors that will have the greatest impact on future decisions. If the tests in a decision are flawed, that case is likely to be overturned and those tests rewritten to be more useful in the future. 

To help envision the five factors, we can take a look at an example case that was overturned and the justices’ reasoning as to why. McConnell is debated and is likely to be overturned in the near future, and analyzing the case through the five factors can help give some insight as to why McConnell is not “good law.”

Example case: McConnell v. FEC

In McConnell v. FEC, the Court originally ruled that monetary contributions by corporations to campaigns were illegal because they threatened an “appearance of corruption”. The decision upheld a recent law, the Bipartisan Campaign Reform Act of 2002 (BCRA), that banned all soft-money campaign donations. 

The FEC argued that campaign contributions, as an action of endorsement, were itself an act of free speech and that it was unconstitutional to ban them. Any law that seeks to restrict the First Amendment is subject to strict scrutiny, which is a test that helps the Court decide whether a law is unconstitutional. One of the provisions of strict scrutiny is that the government must prove that the law fulfills a compelling government interest. Strict scrutiny is an example of a legal test that is applied across many First Amendment cases. 

The key test the justices identified in McConnell was “closely drawn” scrutiny, first established in Buckley v. Valeo. However, this Buckley test was later called into question by Citizens United v. FEC, which instead claimed a higher level of scrutiny for campaign contributions, known as “exacting scrutiny, which requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest”. In contrast to strict scrutiny, it does not require that the law be narrowly tailored, or written to affect a specific set of individuals. 

Since campaign contributions fell under a less strict standard of scrutiny, the Court determined that the bans on “soft-money” contributions were constitutional and had a “minimal restriction on free speech”. Therefore, laws that seek to restrict campaign contributions are not unconstitutional and do not violate the First Amendment. 

If the five stare decisis factors are met, the entire case will likely be overturned. The following is an analysis of McConnell’s overturning through the five factors:

“Nature of their error” 

This factor makes a general statement on whether the Court interpreted the Constitution correctly. In McConnell, the constitutional question concerns the First Amendment’s freedom of speech. However, McConnell did not impose strict scrutiny on the BCRA, even though all government laws concerning free speech should meet this standard. This would be seen as a court error that needs to be corrected. 

Quality of reasoning

Similar to Roe, the quality of McConnell’s reasoning is poor because the decision is not solely grounded in the Constitution. Instead, it primarily supports the BCRA, which was created to ban campaign contributions and is not based in the Constitution’s protections of free speech. The decision and the statute are legally contradictory. Therefore, the quality of reasoning in the decision is low because it does not support the First Amendment.  

Workability

Scrutiny is a general test that is applied to a variety of cases concerning First Amendment protections. However, McConnell describes a specific level of scrutiny that applies to corporate speech, which cannot be applied to all First Amendment cases. In Roe, the “undue burden” test was considered to be unworkable because it was obscure, the rules could not apply universally, and it “undermined…the evenhanded, predictable, and consistent development of legal principles”. In comparison, the “closely drawn” scrutiny test in McConnell is also vague and has conflicting rules. The requirements for this lesser level of scrutiny are not clearly detailed in the decision, thus, the test needed to be amended. 

Possible disruptive effect 

The decision in McConnell did not have a significant impact on future legal precedent. Campaign financing is a legal question that only applies to some cases, and it has a minimal effect on others. However, this factor also considers general government actions and statutes and how the decision places new restrictions on those. McConnell upholds the BCRA, which bans all campaign soft-money contributions. These impact who is placed into seats of power as well as the influence that the government has on elections. The errors in McConnell had too much of an effect on other areas of the government, and therefore, that decision should be overturned. 

Absence of concrete reliance 

McConnell has the same issue with reliance that Roe does: it is too specific (campaign finance) to apply to First Amendment cases generally. Overturning McConnell would not impact other First Amendment cases that are not related to campaign finance. For that specific issue, Citizens United addressed all of McConnell’s concerns and sufficiently replaced all questioned tests. 

Conclusion

While it is understandable that there was mass panic in the aftermath of the Roe decision, it is also important to understand that there were many factors that contributed to the Court’s choice to overturn Roe. These factors are not meant to be checkboxes, but rather, they serve as evaluative measures that the Court can use to determine if something is “good law.” Understanding these factors can help us recognize why Roe was overturned, even if we do not agree with the decision. 

As stated at the beginning of the article, these factors are likely to become more common and discussed now that the courts exist in a post-Roe world. Most of the public’s fear stems from the idea that justices will now be overturning many cases and the stability of the justice system will crumble. However, upon analysis of the five factors, we can see that justices need significant reasons to overturn a case. 

Although Roe may be the first in the restructuring of SCOTUS precedent, the public should understand that there are significant requirements for undermining a case. Precedent is still the foundation of the American legal system, and one overturned decision will not change that.