Symposium: The Future of Reproductive Rights: Concrete Reliance on Stare Decisis in a Post-Dobbs World
This Article will describe two ways in which Dobbs v. Jackson Women’s Health Organization has muddied the Supreme Court’s precedent on precedent. First, it will examine how the Court’s decision to overrule Planned Parenthood of Southeastern Pennsylvania v. Casey undermines not only its substantive due process holding, but also its status as a precedent on precedent. Without Casey in place, Dobbs further elevates a weakened version of stare decisis that has been ascendant on the Court in recent decades, one which threatens to undermine legal stability in all areas of constitutional law. Second, the Article will examine the Dobbs majority’s effort to minimize the reliance prong of stare decisis analysis by asserting that only “very concrete” interests in property or contract are relevant. That move towards concretizing reliance is similar to the Court’s recent efforts to concretize its requirements for Article III standing, an area where the Court’s seemingly neutral principles has deep, and largely conservative, policy implications. It also elevated corporate interests in such concrete property and contractual arrangements over individual liberties, fitting into a broader trend of the Court’s recent jurisprudence.
Michael Gentithes, Concrete Reliance on Stare Decisis in a Post-Dobbs World, 14 ConLawNOW 1 (2022).