Stare decisis helps solve a specific problem for the Supreme Court, which must prove itself as an institution that works through time, not just an amalgamation of nine voices at a given time. When the court resists the impulse to reverse previous decisions, the court builds continuity beyond what its members’ opinions would provide.
Roe had already been revisited, in the 1992 Casey decision, and mostly stayed put. By the standards that have ruled the court for decades, Roe should have been safe not because the majority agrees with it today, but because the Supreme Court is not overturning standing law based on what the majority believes today.
This is the subject of the disappointed assent of Chief Justice John Roberts. “Certainly we must strictly adhere to the principles of judicial restraint here, where the broader path the court chooses is to reject a constitutional right that we have not only previously recognized, but also expressly reaffirmed that we respect the doctrine of stare decisis. to apply.” The liberals’ dissent booms with even deeper anger: “Here, more than anywhere else, the court must apply the law — especially the law of stare decisis.”
But stare decisis, as the judges know much better than I do, it is not a law. And so Samuel Alito, in his majority view, sweeps it aside. “It is important for the public to realize that our decisions are based on principles, and we must do everything we can to achieve that goal by issuing opinions that carefully demonstrate how an understanding of the law leads to the results that we achieve,” he wrote. † “But we cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be influenced by outside influences, such as concerns about the public’s response to our work.”
The argument Alito makes throughout his opinion is simple: the court could be wrong. If it has made a mistake, it must correct itself. Make all the fancy arguments about stare decisis you want, but if a decision is wrong then it is wrong and needs to be reconsidered. To take his perspective, there’s something crazy about being appointed to a seat on the nation’s highest court, but you’re told to let go of the decisions you and four of your colleagues find most damaging.
On some level he is right. Stare decision makes little sense. The problem is that without the Supreme Court itself it makes less sense. It’s just nine costumed political appointees looking for the votes they need to get the results they want. And the further we go down that road, the more the mystique that perpetuates the court dissolves. There really isn’t a rule that the Supreme Court should be obeyed as the last word in constitutional interpretation — that too is a norm, and one that the court cannot enforce. If the Supreme Court is left with only the rules, there will soon be no Supreme Court to speak of.