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05/31/2022

The Dobbs Draft and Stare Decisis: An Epistemic Approach to Integrating the Factors
Chris Green

The Dobbs draft opinion circulated at the Supreme Court in February and leaked to the press in April reads at many points like a shell intended for supplementation in response to concurrences and dissents. One place is footnote 22, in which the opinion very briefly confronts the Privileges or Immunities Clause, claiming that Corfield v. Coryell requires a tradition-based approach to identifying the privileges of citizens of the United States. A second is the issue of the precise significance under a tradition-based view of substantive rights of the prevalence of a right in 1868 as opposed to the existence of a consensus among states today. A third is the opinion’s discussion of stare decisis. The opinion does not attempt to characterize the general nature of stare decisis, but instead simply goes through all of the relevant factors and explains why none of them favor retaining Roe

The pressure of responding to a vigorous dissent will be likely to sharpen the precise ways in which these stare decisis factors work together. One approach that has appealed to an ideologically-diverse set of justices in the past might appeal to the Court in Dobbs. Justices Stevens, Breyer, Barrett, and Thomas have all put the stare decisis question into epistemic terms: is the error of an earlier decision sufficiently clear, given the reliance interests at stake? Stevens’s opinion in McDonald v. Chicago said that “the original meaning of the [Privileges or Immunities] Clause is … not nearly as clear as it would need to be to dislodge 137 years of precedent.” Justice Barrett wrote similarly as a professor: “The need to take account of reliance interests forces a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach.” Justice Thomas in his Gamble opinion distinguished “textually permissible,” though possibly erroneous, precedent, from “demonstrably” erroneous earlier mistakes: “Federal courts may … adhere to an incorrect decision as precedent, but only when … the earlier decision adopted a textually permissible interpretation of the law … When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.” Finally, Justice Breyer at the Dobbs oral argument noted that in a case with big reliance interests, “you better be damn sure that the normal … considerations … are really there in spades.”

If such a “better be damn sure” approach to the stare decisis factors were to emerge from the deliberations in Dobbs between now and the end of the term, what would things look like?  Under this sort of approach, reliance interests produced by a precedent would not alter our constitutional ontology: the truthmaking object of constitutional interpretation that renders constitutional claims true or false. The Constitution still is the Constitution, no matter what the Supreme Court has said about it. The sentence “the Fourteenth Amendment protects abortion rights” would be rendered true or false by the same events as it would have before the Supreme Court addressed the subject: for the originalist, by the meaning expressed by the words of the Fourteenth Amendment in the original context of Reconstruction.

Rather than altering our constitutional ontology, reliance interests would be relevant under a better-be-damn-sure approach to precedent epistemically, by raising the burden of proof before the Court could properly overrule. In that case, it would be critical for dissenters to mount some kind of substantive defense of the propriety of constitutional abortion rights. Those who deem reliance interests in Roe and Casey to be relatively high would require a commensurately smaller defense. But they would need something, and almost certainly more than they received in the Dobbs argument itself. To say that we should retain Roe or Casey solely because of stare decisis considerations would be like a criminal defense attorney urging a jury to acquit solely because the beyond-a-reasonable-doubt standard is so high. To be persuasive, the dissents will have to do better than that. If they do not make the attempt, the majority’s confidence that overruling Roe is the right approach should grow.