Overruling Louisiana: Horizontal Stare Decisis and the Concept of Precedent

Abstract

In 2020, the United States Supreme Court handed down two important decisions involving one single state: Ramos v. Louisiana and June Medical Services v. Russo. In both cases the lower court decisions by Louisiana courts (in Ramos) and by a federal court sitting in Louisiana which had upheld a Louisiana law (in June Medical) were overturned. In this sense, Louisiana was twice “overruled” as state laws (on juries and on abortion) were overturned by the federal government (represented by the Supreme Court). Furthermore, the very notion of “overruling” was involved in both cases: in Ramos the overruling of Apodaca v. Oregon was at stake; in June Medical, the overruling of Whole Woman’s Health v. Hellerstedt was relevant. The two 2020 cases involved precedent and horizontal stare decisis. Much of the discussion in Ramos revolved around the binding force of the 1972 case Apodaca. Some Justices in Ramos offered reasons to justify the overruling of Apodaca; others suggested a novel theory in which Apodaca was not actually precedent and therefore need not be overruled. To support this view the Court offered an approach to precedent that might be at odds with the so-called Marks doctrine from Marks v. United States 430 U.S. 188 (1977). This article will discuss the Marks doctrine, and its bearing on the concept of precedent. The consideration of horizontal precedent was crucial too in June Medical, as the Court visited a question very similar to one the Court had decided four years earlier in Whole Woman’s Health v. Hellerstedt (2016). Marks surfaced in June Medical, not only because of the explicit references to Marks by some of the opinions in June Medical but also because June Medical itself may be read in the future as a “Marks precedent”: a 4-1-4, very much like, as it would seem, the derided Apodaca.