OPINION | The Supreme Court’s recent overruling of Roe v. Wade and other foundational decisions makes clear that key precedents are no longer safe.
At least some in the court’s newly constituted majority seem to have a different conception of the judicial role — one which allows them simply to refuse to apply past decisions they do not like. | Al Drago/Getty ImagesJeffrey L. Fisher is a law professor at Stanford Law School; co-director of the Stanford Supreme Court Litigation Clinic; and special counsel at O’Melveny & Myers LLP.and other foundational decisions makes clear that key precedents are no longer safe.
, the court considered whether recipients of federal funds that discriminate against individuals because of their race, sex or disability must pay damages for any resulting emotional distress. The framework the court established 20 years ago strongly suggested the answer was yes. Justices Brett Kavanaugh and Gorsuch, however, supplied the pivotal votes against the plaintiff on the ground that that framework itself was faulty and thus should never be extended.
We need not look back very far to understand why that is so. During oral argument five years ago in another case involving whether federal officers could be held liable for violating the Fourth Amendment — this time for shooting an innocent child just across the U.S.-Mexico border — Justice Stephen Breyer explained to the plaintiff’s lawyer that the court could not just pronounce which side wins.
Or so we thought. At least some in the court’s newly constituted majority seem to have a different conception of the judicial role — one which allows them simply to refuse to apply past decisions they do not like.was actually doubly disrespectful of. Those defending the right to abortion argued that the court’s prior decisions guaranteeing same-sex couples the right to engage in intimate relations and to marry supported an individual right to obtain an abortion.
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