The Volokh Conspiracy

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New in Newsweek: Dobbs "nullified Justice Souter's linkage of stare decisis and legitimacy"

"A new generation of law students, lawyers, and judges must internalize the Dobbs conception of "legitimacy."


Newsweek has published my new op-ed on Dobbs and legitimacy. In short, Dobbs overruled Casey's linkage of stare decisis and legitimacy, and indeed redefined legitimacy altogether. Finally, the Supreme Court can escape David Souter's shadow.

Here is the introduction:

Three decades ago, three Republican Supreme Court appointees reaffirmed Roe v. Wade because of three words: "stare decisis" and "legitimacy." In Planned Parenthood v. Casey, Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter saved the landmark abortion precedent to ensure that people would not view the Court as a political institution.

Three decades later, in Dobbs v. Jackson Women's Health Organization, five Republican Supreme Court appointees found that stare decisis did not justify saving Roe v. Wade. But equally significant was that the majority rejected Casey's conception of "legitimacy." No longer would the Court's legitimacy be tied to public opinion. To the contrary, a legitimate Court must decide, and even overrule cases without regard for popular sentiments. This monumental shift—far more than any new jurisprudence on abortion—will define how far this new conservative Court will have the fortitude to go.

And the conclusion:

This redefined conception of legitimacy upsets long-standing views about the Court. But more importantly, Dobbs compels a recalibration by the Court's critics. In the past, progressives repeatedly warned that overruling a precedent like Roe would undermine the Court's legitimacy. If Dobbs is any indication, these barbs will be met with a collective yawn. Indeed, if Dobbs was unable to trigger a critical mass of support for Court "reform"—a euphemism for imposing term limits or expanding the number of seats—it is doubtful that anything would.

Justice Alito's opinion makes clear that public attacks will have no effect. Future precedents will turn on this emboldened conservative Court looking inward, not outward. Now, a new generation of law students, lawyers, and judges must internalize the Dobbs conception of "legitimacy."

The concept of "legitimacy" is not monolithic. The Supreme Court has now adopted a new conception  of "legitimacy." And critics will have to internalize this concept, whether they like it or not. Alternatively, the Souter-esque notion of legitimacy, like Casey itself, can be relegated to what I'm calling the living Constitution in exile. Yes, conservatives (apparently) had a Constitution in exile for generations. Progressives, it's your turn.