Plurality Decisions and Prior Precedent

Abstract

Stare decisis may not be an “inexorable command,” but it certainly commands a substantial amount of the Supreme Court’s time and attention. Nowhere is this truer than in the fraught context of the Court’s abortion jurisprudence. In its landmark 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, a narrowly divided Court connected the continued constitutional protection for abortion rights to the perceived necessity of adhering to its earlier decision in Roe v. Wade. Since then, the Court’s abortion decisions have often featured sharp divisions over the proper understanding and application of stare decisis.

In a prior Article, I suggested a framework for extracting precedential guidance from plurality decisions that focused on identifying the universe of future cases that fall within the domain of overlapping agreement shared between the various judgment supportive opinions in a case. The Court’s decisions in Ramos and June Medical provide an occasion to revisit and extend that framework by illustrating how courts applying this “shared agreement” approach should think about plurality decisions in relation to prior majority-supported precedent.

The shared agreement approach provides a way of thinking about plurality precedent that helps to identify plurality decisions that overturn or alter prior precedent and to distinguish them from decisions that leave preexisting precedent untouched. In particular, the shared agreement approach recognizes the ability of plurality decisions to alter precedent only in those circumstances where a majority of Justices whose votes were collectively necessary to the judgment in the original case agree that the earlier precedent should be overruled. Where, by contrast, the members of the judgment-necessary majority disagree about prior precedent, the willingness of a subset of the majority to overrule an earlier decision leaves the precedential status of the earlier decision undisturbed.