The Volokh Conspiracy

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Stare Decisis in Obergefell and Dobbs

Justices Breyer, Sotomayor, and Kagan had no difficulty overruling Baker v. Nelson, and millennia of tradition.


In recent years, Justice Kagan and her colleagues have repeatedly beat the same drum on stare decisis. No doubt, they were dreading the day when a majority of the Court would overrule Roe. But, on at least one occasion, the Court's liberals threw that caution to the wind.

I speak, of course, about Obergefell v. Hodges. That decision overruled Baker v. Nelson, to say nothing about millennia of deeply-rooted traditions. Justice Kennedy overruled Baker without any discussion, whatsoever, of stare decisis.

The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

That's all folks. Justice Kennedy didn't mention any of the Casey factors. Just one sentence. Reminds me how the Warren Court glibly overruled precedents in Mapp v. OhioGideon v. WainrightMiranda v. Arizona, Katz v. United States, and other cases. These decisions, which wrested power away from the states, hardly represented a return to scrupulous neutrality.

I've long thought that the Justices in the Obergefell majority were permanently estopped from professing fidelity to stare decisis. But, to paraphrase Justice Souter, the world is made brand new every morning.