Will Roe be overturned? Here are 6 notable Supreme Court decisions that have been struck down

Denver Newsroom, Oct 22, 2021 / 18:22 pm

Part of a continuing series examining the U.S. Supreme Court case Dobbs v. Jackson Women’s Health Organization, a direct challenge to the 1973 decision in Roe v. Wade that legalized abortion throughout the United States.

Since its 1803 decision in Marbury v. Madison, the U.S. Supreme Court has exercised judicial review, deciding whether laws violate the country's constitution. These decisions are then used as the precedents for further decisions, creating a stable legal landscape.

Exceptions can occur, however, when the court subsequently decides it erred grievously, or when the U.S. Constitution has been amended following court decisions.

Interest in these cases is heightened as the court will hear oral arguments Dec. 1 in Dobbs v. Jackson Whole Women’s Health Organization, a case regarding a Mississippi law banning abortion after 15 weeks. The case is a test of the precedent set by Roe v. Wade and Planned Parenthood v. Casey.

Among the most notable cases that have been overturned or superseded in the past are Dred Scott v. Sandford, Pace v. Alabama, Plessy v. Ferguson, Korematsu v. United States, Apodaca v. Oregon, and Bowers v. Hardwick. An overview of each case and its subsequent history is presented below.

Dred Scott v. Sandford

This 1857 decision issued 7-2 held that citizenship rights were not held by African Americans, regardless of whether they were free or enslaved. Dred Scott was a slave who had been taken into areas where slavery was illegal, and he argued that he was thus no longer enslaved. In finding that African Americans could not be U.S. citizens, the majority opinion said that Scott lacked standing to bring his case. Nevertheless, the court ruled on the merits of the case, finding the Missouri Compromise, a congressional limitation on slave-holding in new federal territories, to be unconstitutional.

Justices Benjamin Robbins Curtis and John McLean both authored dissents in the case. Curtis noted that African-American men were able to vote in several of the states at the time of the Constitution's ratification, and that they were therefore U.S. citizens in fact.

The Dred Scott decision was nullified by the Reconstruction-era Thirteenth and Fourteenth Amendments, which abolished slavery and involuntary servitude, and granted citizenship to all those born in the country and ensured the rights of due process and equal protection.

This case has been widely cited as an example of Supreme Court decisions that were made wrongly, and is frequently pointed to by pro-life activists urging that Roe v. Wade be overturned.

Bishop David Konderla of Tulsa wrote in a July letter that as abortion is intrinsically evil, “there is never a circumstance that could justify it. The laws that protect it are unjust and, therefore, no law at all. Roe was wrongly decided and must be corrected. It offends God and the principles of our founding, just as Dred Scott and its defense of slavery once did. We corrected that error, and now we must correct this one.”

In July 2020 Democrats for Life cautioned the Democratic National Committee that “denying personhood to the pre-born child has disturbing parallels to Dred Scott vs. Sandford.”

Pace v. Alabama

In this 1883 case the court unanimously upheld an Alabama anti-miscegenation law prohibiting interracial marriage. It held that the law did not violate the equal protection clause because it punished equally whites and non-whites: “Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offence designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same.”

This was overturned by two cases in the 1960s. The 1964 decision McLaughlin v. Florida found unconstitutional a Florida law that barred unmarried persons of the opposite sex and when one is white and the other black from habitual cohabitation. And 1967’s Loving v. Virginia struck down a state law prohibiting interracial marriage as violating the equal protection and due process clauses of the Fourteenth Amendment.

Plessy v. Ferguson

This 1896 decision established the “separate but equal” doctrine that permitted racial segregation laws provided that provisions for the races were of equal quality. 

In the 7-1 decision the court said that the Fourteenth Amendment’s equal protection clause didn’t require that “all distinctions based upon color” be eliminated, upholding a Louisiana law that required separate but equal train cars for whites and blacks. The decision held that state legislatures have broad powers to write laws they deem reasonable, so long as they are not intended to oppress a particular class, and that enforced racial segregation does not mark one group with “a badge of inferiority.”

Justice John Marshall Harlan dissented, writing that Louisiana’s Separate Car Act was plainly intended “to exclude colored people from coaches occupied by or assigned to white persons,” compelling blacks “to keep to themselves while traveling in railroad passenger coaches.” He added that the constitution “is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

Plessy was effectively overturned in 1954 by Brown v. Board of Education. That unanimous decision found that racially separate schools “are inherently unequal,” violating the equal protection clause.

Korematsu v. United States

In this 1944 case the court upheld by 6-3 an order that excluded persons of Japanese ancestry from the West Coast during World War II. This exclusion order led to the internment of some 120,000 Japanese Americans.

A 1942 executive order had permitted the War Department to designate military areas from which any or all persons may be excluded, in the interest of preventing espionage and sabotage during the state of war. The U.S. Army then created a military area on the West Coast from which persons of Japanese ancestry were excluded. 

Fred Korematsu was a California native who refused to leave his home, and challenged the exclusion order under the Fifth Amendment’s due process clause.

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The court’s majority opinion held that the exclusion order was not made out of hostility to Japanese-American individuals or their race, but because the military had deemed it necessary for security during the war. In a concurring opinion, Justice Felix Frankfurter held that the war powers clause gives Congress the ability to enforce military orders deemed appropriate for conducting war. 

The three dissenting justices each wrote opinions, all of them holding that the exclusion order was racially discriminatory. Justice Owen Roberts wrote that “it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.”

Korematsu has been widely reprobated since the 1980s, and it was effectively overturned by a passing remark in the 2018 5-4 decision in Trump v. Hawaii. There, Chief Justice John Roberts wrote that “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority,” and that it “is already obvious … Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — 'has no place in law under the Constitution.'” Justice Sonia Sotomayor’s dissent, which was joined by Justice Ruth Bader Ginsburg, also repudiated Korematsu.

In his dissent from the 5-4 decision Stenberg v. Carhart in 2000, which struck down a Nebraska ban on partial-birth abortion, Justice Antonin Scalia wrote that “I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott.”

Apodaca v. Oregon

In this 1972 decision the court ruled that the Sixth Amendment right to trial by jury is not violated by non-unanimous verdict for conviction by state juries in criminal cases. The plurality opinion was held by four justices, with a fifth writing a concurring opinion. Oregon’s constitution allowed a verdict to be reached by 10 members of a 12 person jury.

The plurality of justices held that a unanimous jury was a historical fact, like juries being composed of 12 persons, and was not therefore guaranteed by the right to trial by jury. In his concurring opinion, Justice Lewis F. Powell Jr. held that the Sixth Amendment did require unanimous verdicts for federal trials, but that this did not apply to state trials. Four justices dissented from the plurality decision.

The decision was overturned by Ramos v. Louisiana in 2020. The 6-3 majority opinion found that the Sixth Amendment right to a unanimous verdict was incorporated against states by the Fourteenth Amendment. The minority opinion, authored by Justice Samuel Alito and joined by Chief Justice John Roberts in whole and by Justice Elena Kagan in part, argued the court should maintain the precedence decided by Apodaca.

Multiple amici curiae briefs filed in Dobbs v. Jackson Whole Women’s Health Organization cite Ramos v. Louisiana as grounds for the court overturning Roe v. Wade and its successors. 

A July amici curiae brief by Mary Ann Glendon and O. Carter Snead said that Justice Brett Kavanaugh’s concurrence in Ramos gave three broad considerations to determine whether there is a special justification to overrule an erroneous precedent: that it is “grievously or egregiously wrong”; it has “caused significant negative jurisprudential or real-world consequences”; and whether overruling the decision would “unduly upset” society’s operation.

Jackson Whole Women’s Health Organization similarly cited Justice Kavanaugh’s “egregiously wrong” standard as the issue before the court in its case.

Bowers v. Hardwick

This 1986 decision upheld, by a 5-4 vote, a Georgia law that criminalized sodomy.

The majority opinion rejected the argument that the right to privacy, discovered by the court in its 1965 decision in Griswold v. Connecticut in the Fourteenth Amendment’s due process clause, extended to homosexual conduct. Justice Byron White wrote that “There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority.”

Bowers was overturned in 2000 by Lawrence v. Texas. The majority opinion, held by five of the justices, held that the right to privacy through the due process clause did extend to consensual sexual conduct. In a concurring opinion, Justice Sandra Day O’Connor held that Bowers should not be overturned, but that the Texas sodomy law was nevertheless unconstitutional, by violating the equal protection clause, because it criminalized homosexual, but not heterosexual, sodomy.

In his dissent in Lawrence, Justice Scalia noted that “Today's opinions in support of reversal do not bother to distinguish — or indeed, even bother to mention the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it … Today, however, the widespread opposition to Bowers, a decision resolving an issue as ‘intensely divisive’ as the issue in Roe, is offered as a reason in favor of overruling it.” 

Scalia added that the majority opinion gave three criteria for overruling erroneous precedent, adding that “Roe itself — which today's majority surely has no disposition to overrule — satisfies these conditions to at least the same degree as Bowers” and that “the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.”