COLORADO SPRINGS, Colo. (KRDO) - A leaked draft that says the Supreme Court is poised to strike down Roe versus Wade, the landmark decision regarding the right to an abortion, now has many wondering if other previous decisions from the High Court are vulnerable.
A professor of political science at the University of Colorado Colorado Springs says other polarizing decisions could be at risk. That's because that's exactly how the Supreme Court is supposed to function.
"The Supreme Court always has the authority to overturn itself, and that's always going to be the case in a constitutional system, the principle of stare decisis is just that," said Josh Dunn. "It's a principle it's not a law. In fact, the primary oath that Justices take is not to precedent, but to the Constitution itself."
Dunn says if there are Justices who think that a previous court got the Constitution wrong, it would violate their oath to uphold an unconstitutional decision from the past.
"Frankly, that's the way we should want it," said Dunn. "Justices' first object of loyalty should be the Constitution, not to the past decisions of the court.”
Brown v. Board of Education, the landmark Supreme Court decision that said segregation was unconstitutional overturned Plessy v. Ferguson as it applied to K-12 education.
Dunn also touched on Obergefell v. Hodges, which gives same-sex couples the right to marry, possibly becoming vulnerable.
“I don't know that Obergefell is going to be going to be vulnerable, but what I would say is that leaking this draft opinion probably makes it more vulnerable," said Dunn. "Because I think they are probably some of the conservatives on the court who were so outraged by it being leaked, that it might stiffen their resolve in confronting some of the decisions that they think were mistaken.”
There would also need to be a current case that would land on the Justices’ desk to change that previous decision.
"I don't think there's any kind of case working its way through the courts right now that could actually be used to go after Obergefell, but it's a possibility," said Dunn. "I think that the possibility is greater today than it was yesterday.”
The leaked draft is just that — a draft. So justices on both sides have time to change their minds before the final decision is released in June.
"There can always be decisions that are going to be overturned," said Dunn. "That being said, there is value in the principle of stare decisis that you do want regularity in the law because people need to be able to project into the future. So, there have been occasions where you've had Supreme Court justices say, 'I think a past decision was incorrect. But because we've ordered our lives around it so significantly, I'm not willing to vote to change it now.'"
Dunn says an example of this can be found in Planned Parenthood v. Casey.
"If you read Planned Parenthood v. Casey carefully, the three justices who wrote that controlling opinion, they essentially said that, 'Well, if we were on the court in 1973, we probably wouldn't have decided Roe the way the court decided it then,' implying that they thought that there was something wrong with the reasoning. However, there was just too much water under the bridge and there were settled expectations, so they weren't willing to upset that. So they were upholding it on precedential grounds, not because of the strength of the constitutional reasoning."