A decision handed down by the U.S. Supreme Court last week nicely illustrates several recurring themes in most of our common law courses. Early on students learn that because of the concepts of precedent and stare decisis courts are suppose to follow rules created earlier in time by higher court decisions. They are then taught that the highest court in most common law countries are not really obligated to follow their own past decisions, only the lower courts are. Finally they realize that when high courts don't follow their own past decision it's primarily because some or all of the members of the court have changed.
Last week's decision illustrates this point very nicely. In 2000 the United States Supreme Court struck down a law prohibting a particular kind of abortion procedure because it failed to make an exception that would allow the procedure to be used if needed to protect the health of the woman. This exception has been part of Supreme Court abortion rulings for well over 30 years. Last week the Court reversed itself saying that such a law was valid despite the fact that no exception for the woman's health existed. So what changed between 2000 and 2007? Simple really. President Bush was able to appoint two new members to Court because of the death of one Justice and the retirement of another. Those two appointments shifted the majority view of the court on this matter in a way that basically led the Court to reversing itself.
