Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?

Article excerpt


Stare decisis, the Supreme Court has often reminded us, is a rule of policy, not a rule of law. This is especially tree in constitutional cases, the Court has said repeatedly, because of the difficulty of overturning one of the Court's constitutional decisions by way of constitutional amendment.(1)

Nonetheless, the Court has occasionally relied on stare decisis as an apparently near-dispositive factor in deciding some extremely important constitutional cases, while at the same time continuing to express the view that stare decisis is not a doctrine of constitutional dimension. Most famously and recently, in Planned Parenthood v. Casey,(2) the Court reaffirmed its controversial holding in Roe v. Wade(3) recognizing a constitutional right to abortion, and did so largely on the basis of the policy of stare decisis.(4) The Court was reluctant--especially so the three Justices authoring the "joint opinion" for the Court in the case (Justices O'Connor, Kennedy, and Souter)--to embrace as correct the substantive due process jurisprudence of Roe. The opinion expressed the apparent doubts of at least some of the Justices constituting the majority about the correctness of Roe as an original matter and the morality of a constitutional right to abortion as a general proposition. Nonetheless, the policy of stare decisis persuaded a narrow majority (5-4) to reaffirm Roe, notwithstanding these reservations.(5)

I have criticized the Court's opinion in Casey in other writing, challenging its reliance on stare decisis and arguing that stare decisis is often merely a disingenuous "cover" for a decision made on other grounds.(6) My goal here, however, is to take seriously the Court's stated reliance on stare decisis in Casey as a good-faith position sincerely adopted by the authors of the joint opinion. At the same time, I wish to take seriously the Court's position that stare decisis is neither a doctrine of constitutional dimension nor a strict rule of law, but rather is a subconstitutional doctrine of ostensibly wise judicial practice, procedure, and policy. Accepting both of these propositions, I wish to address whether Congress may abrogate stare decisis in a particular class of constitutional cases (or in federal question cases generally), and direct the federal courts to decide such cases(7) in accordance with the courts' best present understanding of the meaning of the Constitution, without according prior judicial interpretations any decision-altering weight beyond the persuasiveness of their reasoning. The upshot of such a statute would be that courts would be obliged to overrule a prior interpretation of the Constitution if persuaded that the prior interpretation was incorrect on the merits.(8)

In treating this question, I will not indulge in the usual academic pretense (which is almost invariably a pretense) of dispassionate neutrality. I have written on the abortion issue before, and my view that Roe is fundamentally illegitimate (and immoral) is well-documented.(9) Nor do I wish to hide my purpose here. My motivation for writing, revealed in the style of my presentation, is one that openly reflects a desire that Roe be overturned.(10) My analysis, however (as distinguished from my motivation), is not, I hope, result-driven or result-bound. The skeptical reader may put that to the test: If sound, my thesis should be fully generalizable across the entire range of constitutional issues. If Congress may abrogate the stare decisis effect of Roe and Casey, in effect requiring the Court to reconsider the abortion issue on a clean slate, it may do the same for, say, Bowers v. Hardwick,(11) a controversial constitutional holding that engenders equally strong views (reflecting, typically, different political alignments).(12) The argument that I offer here is content-neutral. The merit of the argument does not depend on the issue for which it is advanced. Accordingly, I challenge the skeptical reader to substitute the issue of his or her choice--we all have our lists of most-despised precedents--as a way of testing the thesis. …