The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
During oral arguments in Dobbs, Chief Justice Roberts asked a question about the relationship between stare decisis and originalism that I hadn't considered.
CHIEF JUSTICE ROBERTS: On stare decisis, I think the first issue you look at is whether or not the decision at issue was wrongly decided. I've actually never quite understood how you evaluate that. Is it wrongly decided based on legal principles and doctrine when it was decided or –or in retrospect?
Because Roe –I mean, there are a lot of cases around the time of Roe, not of that magnitude but the same type of analysis, that -that went through exactly the sorts of things we today would say were erroneous, but do we look at it from today's –if we look at it from today's perspective, it's going to be a long list of cases that we're going to say were wrongly decided.
When Roe was decided in 1973, the Court was decidedly non-originalist. Rather, the excesses of the pragmatic Warren Court were still fresh. The Court would make stuff up because it could. Justice Blackmun did not engage in any meaningful historical analysis that the Fourteenth Amendment, as originally understood, protected a right to abortion during the first two trimesters. The viability line was made up out of thin air. The mere fact that some states permitted abortions prior to quickening (whatever that standard means) does not raise that practice to the level of a fundamental right.
Today, the Court is far more formalist, and often hews towards originalism. If Roe were decided as a case of first impression in 2021, there is little doubt how the case would come out. This much is clear.
But Roberts asked a different question. When assessing whether a decision is wrong for purposes of stare decisis, should courts "look at it from today's [formalistic] perspective" or through the methodology that prevailed when the case was decided? Under Justice Blackmun's pragmatic legal philosophy, Roe was hunky-dory. But under the formalistic approaches from Justices White and Rehnquist in dissent, Roe was badly wrong. Which approach controls?
Now what exactly is Roberts asking about? Is he asking about originalism? Or is he asking about stare decisis? Or both? Recently, Steve Sachs, Mike Ramsey, and others have written that originalism and stare decisis are distinct concepts. A judge can be a faithful originalist, even if he adopts a flawed model of stare decisis. I'm not so sure you can disentangle them completely. And Roberts's question illustrates why.
To even consider overruling Roe, one most first determine that Roe was wrong. And to determine Roe was wrong, one must decided if originalism, or some sort of hippy-dippy jurisprudence controls. Could a faithful originalist argue that the "wrongness" prong of stare decisis should turn on non-originalist methodologies?
I suspect that Justice Thomas would answer Roberts's question by saying follow originalism all the way down. Originalism remains at the core of all aspects of constitutional jurisprudence, including stare decisis. Like a Russian nesting doll, originalism remains in the center.
I need to give this question some more thought.