Thomas R. Newman
June Medical Services v. Russo, 591 U.S. ___, 140 S.Ct 2103 (2020), will probably be remembered by the public at large as the case in which the U.S. Supreme Court ruled unconstitutional a Louisiana state law requiring doctors working in abortion clinics to have "active admitting privileges at a hospital … located not further than thirty miles from the location at which the abortion is performed." The law mirrored a Texas state law that the court found unconstitutional in 2016 in Whole Woman's Health v. Hellerstedt, 579 U.S. ___ , 136 S.Ct __ (2016). For state and federal court litigators, Chief Justice Robert's concurring opinion will also be recalled for its recital of the history of the doctrine of stare decisis, "the legal term for fidelity to precedent" and its present application in federal courts. 140 S.Ct at 2134 (concurring opinion, quoting Black's Law Dictionary).
Quoting 18th century sources as applicable to 21st century litigation, the Chief Justice begins by noting that in 1765 it had "long been ‘an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion.'" 140 S.Ct at 2134 (concurring opinion; quoting 1 W. Blackstone, Commentaries on the Laws of England 69 [1765]). He then explains that "[t]his principle is grounded in a basic humility that recognizes today's legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them." 140 S.Ct at 2134 (concurring opinion).
Returning to the 18th century and Hamilton's The Federalist No. 78, the Chief Justice notes "[a]herence to precedent is necessary to ‘avoid an arbitrary discretion in the courts'" Ibid. Next come quotations from two of the court's late 20th century decisions reminding us that "[r]espect for precedent ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.' Payne v. Tennessee, 501 U.S. 808, 827 (1991), and that it "is the ‘means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.' Vasquez v. Hillery, 474 U.S. 254, 265 (1986)." Ibid.
But, we are cautioned, "Stare decisis is not an inexorable command" and "[t]he Court accordingly considers additional factors before overruling a precedent, such as its administrability, its fit with subsequent factual and legal developments, and the reliance interests that the precedent has engendered." 140 S.Ct at 2134 (concurring opinion, citations omitted). Justice Alito, in dissent, also notes that "[r]eexamination of a precedent may be appropriate when it is an ‘outlier' and its reasoning cannot be reconciled with other established precedents." 140 S.Ct at 2170 (dissenting opinion; citations omitted).
This is also the law of New York. "Precedents remain precedents … not because they are established but because they serve the underlying ‘nature and object of the law itself,' reason and the power to advance justice." People v. Bing, 76 N.Y.2d 331, 338 (1990). The Court of Appeals, also quoting Blackstone, stated, "‘Precedents and rules must be followed, unless flatly absurd or unjust' (Blackstone, Commentaries on the Law, p 70). Blackstone's blunt statement of the rule shows that from the earliest times the doctrine of stare decisis did not require a strict adherence to precedent in every instance." Matter of Eckart, 39 N.Y.2d 493, 498-99 (1976). However, the "existence of strong arguments to support a different result is not sufficient, in and of itself, to compel the court to overturn judicial precedent." Id. at 502. There must be a "compelling reason to change the established rule," id. at 502, such as "that the law has been misapplied, or … the former determination is evidently contrary to reason," id. at 502.
"Although a court should be slow to overrule its precedents, there is little reason to avoid doing so when persuaded by the ‘lessons of experience and the force of better reasoning.' … This is especially so in constitutional interpretation where legislative change is practically impossible." People v. Bing, 76 N.Y.2d 331, 338 (1990). On the other hand, "considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation." Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977).
In New York state court cases, the "source of the existing rule is of course a significant consideration. When the courts themselves have originated the rule, as for instance a common-law rule of tort, the courts will more readily re-examine it and, if necessary, set it aside (see, e.g., Kalechman v. Drew Auto Rental, 33 N.Y.2d 397) … . [I]f a recent holding interpreting a statute is out of harmony with a long line of well-reasoned opinions, the courts need not wait for the Legislature to repair the damage (see, e.g., Helvering v. Hallock, 309 U.S. 106). And even when the error is made at the outset, in an initial decision interpreting a novel statute, the court may at a later date change direction." Matter of Eckart, 39 N.Y.2d at 499; Matter of Cameron v. Ellis Constr. Co., 252 N.Y. 394, 399 (1930) (when considering "the scope of novel legislation, the courts must at first be guided by abstract reasoning and anticipation of probable consequences").
In People v. Hobson, 39 N.Y.2d 479, 488 (1976), the Court of Appeals gave four examples of personal injury cases "where courts will, if necessary, more readily re-examine established precedent to achieve the ends of justice in a more modern context (see, e.g., Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395; Goldberg v. Kollsman Instrument, 12 N.Y.2d 432; Bing v. Thunig, 2 N.Y.2d 656; Woods v. Lancet, 303 N.Y. 349). Significantly, in these cases the line of precedent, although well established, was found to be analytically unacceptable, and, more important, out of step with the times and the reasonable expectations of members of society."
Unlike tort cases, where the law is constantly evolving as society's notions of duties change, there are cases where the need for stability and predictability outweigh the need to purge an erroneous decision. Some precedents are more durable than others." Matter of Eckart, 39 N.Y.2d at 499. This is especially true in cases involving contractual obligations, real property and the interpretation of wills.
The closeness of a vote in a precedential case furnishes no justification for reopening a settled legal controversy. Semanchuck v. Fifth Ave & 37th St. Corp., 290 N.Y. 412, 420 (1943). The "authoritative force of a decision as a precedent in succeeding cases is not determined by the unanimity or division in the court." Ibid. Troublesome precedents have been followed "just because it would have been scandalous for a court to shift within less than two years because of the replacement of one of the majority in the old court by one who now intellectually would have preferred to have voted with the old minority and the new one. The ultimate principle is that a court is an institution and not merely a collection of individuals." People v. Hobson, 39 N.Y.2d at 491. Governing rules of law do not change merely because the composition of the court changes.
In June Medical Services, the Chief Justice also tells us how the court "handle[s] a decision that itself departed from the cases that came before it. In those instances, ‘remaining true to an ‘intrinsically sounder' doctrine established in prior cases better serves the values of stare decisis than would following' the recent departure … . Stare decisis is pragmatic and contextual, not a mechanical formula of adherence to the latest decision.'" 591 U.S. ___ at ___ (concurring opinion 4, citations omitted).
New York's former Chief Justice Charles D. Breitel expressed a similar thought in People v. Hobson, 39 N.Y.2d 479, 488 (1976), where he stated, "Of course, it would be foolhardy not to recognize that there is potential for jurisprudential scandal in a court which decides one way one day and another way the next; but it is just as scandalous to treat every errant footprint barely hardened overnight as an inescapable mold for future travel."
Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender).
Steven J. Ahmuty Jr. is retired from Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.
Reprinted with permission from New York Law Journal, © ALM Media Properties LLC. All rights reserved.