Technically, the Court can freely reverse its own decisions. However, is there a sense in which it would be morally wrong for the Court to reverse decisions that have expanded rights so as to limit them?
Please consider, for example, the following argument, modified from a post that I made in another thread advocating the view that the Constitution itself is not changed even when the Supreme Court changes its view on the Constitution:
Assume, for the moment, that the question is whether the Constitution guarantee of equal protection should extend to all forms of sexual relationships.
1. The text of the Equal Protection Clause does not reference sexual relations.
2. The phrase "sexual relations" does not appear in the Constitution.
3. There are many cases valid today in which the application of the Equal Protection Clause has been held not to protect various citizens against various laws. For example, the Equal Protection Clause does not protect against certain forms of discrimination against white applicants -- who are citizens -- where there is a compelling state interest in affirmative action (referring here to the recent University of Michigan Law School case) in relation to the rules relevant to that case. Your implication that the Equal Protection Clause equally protects all citizens in all cases, producing a result that eliminates all discrimination against citizens, is flat wrong; it depends on the issue and the rule.
4. The Supreme Court in the Bowers case previously decided that states could, in fact, discriminate against homosexual sodomy. The later Romer case reversed that ruling to the extent incompatible with same. At some future time, another case could, by the same token, reverse the Romer case. Yet the fact is that the text of the Equal Protection Clause has not changed for centuries. The only way that this makes any sense is to say that the Equal Protection Clause has no intrinsic reference to sexual relations or in regard to any specific application of the law. The majority in Romer would not, and does not, contest this fact. If it did, there would be no role for the Supreme Court in deciding the application of any Constitutional provision. It is the interpretation of the Equal Protection Clause that has changed through the years -- and it can change in any direction.
If, hypothetically, the Supreme Court decides in a future case that Romer is wrong and adopts the position taken by the dissent, then that still doesn't mean that the Equal Protection Clause either does or does not specifically address the question of sexual relations. It only means that that certain component of Constitutional law that comprises the Court's interpretation of the Constitution has establshed that the Equal Protection Clause does not apply to protect against discrimination on the basis of homosexuality. Both by parity of logic and common sense, as well as by Constitutional and legal reasoning, therefore, neither then does the fact that Romer reverses Bowers mean that the Equal Protection Clause intrinsically references or contemplates sexual relations. If it wouldn't make sense to say that the Equal Protection Clause fails to protect against discrimination on the basis of sexuality in one case, then equally it wouldn't make sense to say that it does in fact instrinsically protect against it in another. The Equal Protection Clause states a principle -- not an application of that principle. The actual text of the Clause hasn't changed; merely the interpretation has changed.
Put another way, if, in a few years, Romer is reversed by the Court, would you therefore agree with those who may claim that the Equal Protection Clause intrinsically declines to protect against discrimination against homosexuality? I would think that you would not, and you would be right. You would argue that the Court made a mistake and would say that the Equal Protection Clause should protect against such discrimination. But, nevertheless, your argument wouldn't mean that, under Constitutional law, the Equal Protection Clause had changed, nor would it mean that reading the Clause would intrinsically compel everyone to support your view. Again: The Equal Protection Clause hasn't changed; it's merely the interpretation that has changed -- precisely as the interpretation of it has changed between Bowers and Romer. Under the principles of Marbury v. Madison, the state of the Constitutional law at that point would be that the Equal Protection Clause does not protect against such discrimination.
One should never assume that merely because the Supreme Court has stated that the Equal Protection Clause protects a certain class of individuals or as regards a specific kind of conduct in one case, that the Clause (or any other part of the Constitution of the United States considered in and of itself) has a specific reference to it. It does not, unless by the terms of the text itself, it does, irrespective of the truth that the results of the Court's interpretation of it as applicable at any given time are binding under Marbury. To do otherwise would be historical revisionism of the most fundamental and absurd kind.
Query: Given the above, even though, as I have argued, the physical text of the Constitution may be variously interpreted and even though such interpretations may be reversed, is there nevertheless some moral obligation on the Court that requires it never to reverse case so as to eliminate or greatly curtail rights that it has previously found to exist?
Thank you in advance for your considered responses to this question.
[Edited 2007-01-18 07:08:25]