The Purpose and Practice of Precedent: What the Decade Long Debate Over Stare Decisis Teaches Us About the New Roberts Court

Authors

Russell A. Miller

Abstract

The Supreme Court’s tectonic decision in Dobbs v. Jackson Women’s Health upended the Doctrine of Substantive Due Process by radically reinterpreting the doctrine of stare decisis. The Court’s established practice regarding stare decisis should have operated to preserve the fifty-year-old abortion jurisprudence. But we should have seen this change coming. Although there has been an intense and involved debate over the purpose and practice of precedent for generations, that debate shifted at the beginning of 2018. Four approaches to stare decisis emerged along a continuum, from complete abandonment of the doctrine and incremental erosion to modernized adherence to precedent. This article examines how six key cases not only laid the foundation for the new stare decisis doctrine articulated in Dobbs, but it considers what we might expect from this Court as the Justices try to convince others to embrace one or a mixture of these four perspectives.

Recommended Citation

Russell A. Miller, The Purpose and Practice of Precedent: What the Decade Long Debate Over Stare Decisis Teaches Us About the New Roberts Court, 51 Hastings Const. L.Q. 231 (2024).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol51/iss2/5