Can Smith v. Doe be overturned?

in 2003, the Supreme Court of the United States dealt us a very bad hand. The Court’s decision in Smith v. Doe, has been the foundation upon which States (and even the federal government itself) have been able to pile on additional requirements and restraints, under the premise that “the registry” is not punishment.

A lot has happened since 2003. First, a ton of research has come out disproving the “frightening and high” myth that the Court relied on at that time. And second, this “pile” of additional requirements and restraints has created what is now being referred to as “second generation” sex offender laws – a registry that has very little resemblance to the registry that existed 15 years ago when Smith v. Doe was decided.

A wave of court cases have been making their way to the Supreme Court lately, some (like Does v. Snyder) haven’t made it through the gate but others (mostly dealing with narrow issues – such as Nichols, Packingham and Gundy) have been heard. More are making their way up the ladder.

Which has prompted several to ask whether it’s even possible to overturn a Supreme Court decision.

Ordinarily the doctrine of Stare Decisis dictates that rules or principles set out in previous judicial decisions apply as precedent. An appellate court can overturn a trial court and a supreme court can overturn an appellate court. But with the SCOTUS being the most supreme court in the land, who can overturn the Supreme Court?  The answer is… itself.

In 1896, The Supreme Court of the United States upheld the doctrine of “separate but equal” in Plessy v. Ferguson. It took a long time (too long) for the court to overturn that decision. In 1954’s Brown v. Board of Education of Topeka, they ruled that schools segregated by race were unconstitutional.

It is possible to overturn Smith v. Doe. We just need to get that case before the Supreme Court!