If the Supreme Court overrules Roe in the new term, will we know for sure?

The state of Mississippi this week urged the U.S. Supreme Court to overrule the two foundational precedents for a woman’s right to choose to have an abortion—Roe v. Wade and Planned Parenthood v. Casey. If the justices agree, will we know for sure?

The question isn’t as far-fetched as it may seem. The justices haven’t always used the magic word “overruled” to speak clearly about what they have done.

In the abortion case Dobbs v. Jackson Women’s Health Organization, to be heard in the new term, Mississippi, however, is quite clear in what it wants the justices to do.

“The stare decisis case for overruling Roe and Casey is overwhelming,” the state argues. “Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition.”

The issue that the justices agreed to decide in the state’s case is whether all pre-viability prohibitions on elective abortions are unconstitutional.

The state is defending a law that bans abortions after 15 weeks, a time well before the general consensus that viability occurs at 24 weeks. The Mississippi law is a direct challenge to Roe as well as Casey, which reaffirmed Roe’s core holding.

“Before viability, the state’s interests are not strong enough to support a prohibition of abortion,” the court held in Casey.

There are at least three ways the court can discard a precedent, and it has done all three in recent terms.

First, there is the magic word. In 2018, a 5-4 conservative majority discarded a 41-year-old decision in Janus v. AFSCME. The decades-old decision in Abood v. Detroit Board of Education had held that so-called “fair share” or agency fees paid by nonunion workers for the cost of collective bargaining by unions required to represent them did not violate the First Amendment speech rights of the nonunion workers.

“Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years.,” Justice Samuel Alito wrote. “Abood is therefore overruled.”

There was no question that the Janus decision overruled Abood. The majority went through each of the factors weighed when deciding whether to overrule a precedent, and the dissent countered with its own weighing of those factors. It was the classic approach used by the justices for years.

Second, there has been a kind of back-handed overruling. Japanese Americans have waited decades for the justices to state clearly that the court’s opinion upholding the internment of Japanese Americans in World War II was wrong and was overruled. When the justices in Trump v. Hawaii finally addressed its 1944 decision In Korematsu v. United States, it was almost an afterthought.

Trump v. Hawaii involved the Trump administration’s defense of the so-called Muslim ban—presidential orders prohibiting the entry into the United States of foreign nationals from eight predominantly Muslim nations. It wasn’t until the very end of his majority opinion that Chief Justice John Roberts Jr., only by responding to the liberal dissenters who likened his opinion to Korematsu, addressed the 1944 decision:

“The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what 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.’”

Roberts’ language left some scholars and court watchers wondering if the court had actually overruled Korematsu. Roberts did say the decision had been “overruled in the court of history,” but he did not say explicitly that his court was overruling it. And the issue of overruling Korematsu had not been raised and briefed in the Hawaii case and was not part of the case’s official holding.

After so many years, Japanese Americans could be forgiven if they felt less than satisfied with Roberts’ comments.

And finally, there is the “hidden” overruling, the least clear of all approaches, the most confusing to the public and perhaps the most dishonest.

Some believed that was the case in the term just ended when a divided court decided Jones v. Mississippi. Brett Jones was 15 when he killed his grandfather. He was convicted and state law required a mandatory sentence of life in prison without parole.

The Supreme Court subsequently ruled that those mandatory sentences violated the Eighth Amendment. That sentence could not be mandatory for those under 18 and judges had discretion to impose lesser sentences, according to the justices. Jones was resentenced following that ruling, but the judge reimposed life without parole.

The Supreme Court later made its decision striking down the mandatory sentence retroactive, and Jones had a new opportunity to appeal his sentence. He argued in the high court that under those recent Supreme Court decisions, judges had to make a separate factual finding that a murderer under 18 was permanently incorrigible before sentencing him to life without parole. Justice Brett Kavanaugh, writing for the majority, disagreed with Jones’ interpretation of the two high court decisions. He wrote that a discretionary sentencing process in which youth was considered a factor was adequate.

And the majority also disagreed with the three liberal dissenters in the case who said the court had abandoned the meaning of those two earlier decisions. He downplayed their disagreement, calling it a “good faith disagreement” over how to interpret the court’s prior two decisions. Justice Sonia Sotomayor, writing for the dissenters, accused the court of gutting those two decisions.

“Miller’s essential holding is that ‘a lifetime in prison is a disproportionate sentence for all but the rarest children, those whose crimes reflect ‘irreparable corruption,’” she wrote, quoting Miller v. Alabama (2012) and Montgomery v. Louisiana (2016).

The majority, she said, “attempts to circumvent stare decisis principles by claiming that ‘[t]he Court’s decision today carefully follows both Miller and Montgomery.’ The Court is fooling no one. Because I cannot countenance the Court’s abandonment of Miller and Montgomery, I dissent.”

Who was right? Did the majority implicitly overrule Miller and Montgomery?

Abortion rights advocates believe there will be no lack of clarity if the justices rule for Mississippi. “Let’s be clear; any ruling in favor of Mississippi in this case overturns the core holding of Roe –the right to make a decision about whether to continue a pregnancy before viability,” the Center for Reproductive Rights said on the filing of Mississippi’s main brief this week.

They are certain, but will we be?

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.