Isn’t the Associate Justice’s Warning Hypocritical?
by Mark M. Bello
Justice Neil Gorsuch recently scolded the federal judiciary with this warning:
“Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them.”
It’s a stern reminder of the hierarchy of constitutional law: trial courts and appellate courts must obey Supreme Court precedent, whether they like it or not. But what about the Supreme Court? Does stare decisis—the doctrine that legal precedent should generally be respected—stop at the marble steps of One First Street?
Since Gorsuch assumed his seat on the High Court in 2017, SCOTUS has repeatedly proven that when this majority dislikes precedent, it routinely defies those justices who came before. Isn’t it hypocritical to admonish lower courts for insubordination when you consistently do the same thing? Isn’t Neil Gorsuch talking out of both sides of his mouth?
Stare Decisis
Stare decisis means “to stand by things decided.” It is one of the bedrock principles of American jurisprudence. The idea is simple: the law should be stable, predictable, and consistent, not shifting with the personal politics of each new judge.
This principle is supposed to apply everywhere in the judicial system. Lower courts must follow higher courts, and the Supreme Court itself, though it retains the power to overrule, traditionally shows restraint—changing course only in the rarest of circumstances.
But in recent years, restraint has given way to license. The Supreme Court has overturned landmark rulings not reluctantly, but aggressively, sometimes discarding decades of doctrine in a single opinion.
Defiance of Precedent—The Gorsuch Cases
While Justice Gorsuch preaches against “defiance,” his actions speak much louder than his words. Here’s his record of disdain for and outright defiance of precedent since he assumed his seat on the High Court:
- Ramos v. Louisiana (2020) – Gorsuch wrote the opinion that overruled Apodaca v. Oregon (1972). For nearly half a century, states like Louisiana and Oregon were allowed to convict people with non-unanimous juries. Gorsuch and the majority swept that precedent away.
- Kennedy v. Bremerton School District (2022) – Gorsuch again authored the opinion, this time overruling Lemon v. Kurtzman (1971) and its famous “Lemon test.” For 50 years, that test shaped Establishment Clause cases. With the stroke of a pen, Gorsuch declared it gone.
- Dobbs v. Jackson Women’s Health Organization (2022) – The most seismic of all. A 5–4 majority, including Gorsuch, overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). For half a century, the constitutional right to abortion was recognized as the law of the land. Now, it is not.
- Loper Bright Enterprises v. Raimondo (2024) – Overruled Chevron v. NRDC(1984), perhaps the single most important administrative law precedent of the past 40 years. The “Chevron deference” doctrine guided how courts treated federal agency interpretations of law. The Court didn’t just narrow it—they torched it.
And those are just the headliners. Consider also:
- Partisan Gerrymandering: In Rucho v. Common Cause (2019), the Court declared that federal courts could not review partisan gerrymanders at all. This effectively abandoned earlier signals from Davis v. Bandemer (1986) that such cases were reviewable.
- Presidential Power: In cases concerning executive immunity and the “unitary executive” theory, the Court has shifted dramatically toward expanding presidential authority—often by ignoring or minimizing previous checks.
This is not cautious correction. It is wholesale reversal and extremely dangerous when the president of the United States is named “Trump.”
Before conservatives try to shove my words down my throat, I am not arguing that Gorsuch is factually or legally wrong. Lower courts are duty-bound to obey Supreme Court rulings until told otherwise. But Gorsuch’s own record shows almost an eagerness to toss precedent aside when it suits his political philosophy.
- In Ramos and Kennedy, Gorsuch wrote the opinions discarding half-century-old rulings.
- In Dobbs, he joined the most consequential overruling in generations.
- In Loper Bright, he sided with conservatives to dismantle one of the pillars of modern governance.
What happened to the conservative philosophy that judges must not “legislate” from the bench? To the lower courts, Gorsuch says: “Obey, never defy.” But to describe his own conduct and that of the current SCOTUS majority, the message is quite different: “Defy freely, so long as you have five ideological votes.”
Who Cares? Why does this Matter?
When the United States Supreme Court reverses precedent, it shakes the foundation of legal stability. Sometimes, such change is necessary—as when Brown v. Board of Education (1954) famously overruled the “separate but equal” doctrine of Plessy v. Ferguson. But when overruling precedent becomes routine, when it is used to advance ideology rather than to correct clear errors, the Court’s legitimacy suffers.
The danger is not just that laws change. It’s that the Court becomes political, a super-legislature rather than a guardian of constitutional law. Citizens correctly believe that future outcomes will depend not on the Constitution, but on the partisan identity of Supreme Court Justices.
Stare decisis is supposed to protect against that cynicism. Yet the Court’s conservatives—Gorsuch chief among them—have shown they view precedent as disposable when it conflicts with their political ideology.
When Neil Gorsuch declares that no judge is free to defy the Court, he’s half right. But he’s also half wrong. His Supreme Court has, in fact, made a habit of defying its own history, discarding long-settled principles that are politically inconvenient. The hypocrisy is striking. Gorsuch demands fidelity from lower courts while practicing selective defiance from on high. The result is two-faced jurisprudence—lecturing restraint while wielding power with zero restraint.
His words ring hollow.
Justice Gorsuch: Want to warn against defiance? Talk to a mirror.
Mark M. Bello is an attorney and author of 9 Zachary Blake Legal Thrillers and other legal themed novels and children’s books. For more information, please visit https://www.markmbello.com