Nina Varsava, Precedent, Reliance, and Dobbs, 136 Harv. L. Rev. 1845 (2023).
Abstract
Our system of stare decisis enables and encourages people to rely on judicial decisions to form expectations about their legal rights and duties into the future, and to structure their lives and mentalities based on those expectations. In following precedent, courts serve the reliance interests of those subject to the law and accordingly support their autonomy, self governance, and dignity. Despite widespread reliance on the precedents protecting the right to abortion, in Dobbs v. Jackson Women's Health Organization the Supreme Court declined to give any consideration to those interests. This move signals a notable shift in the Court's stare decisis jurisprudence and would seem to overrule Planned Parenthood of Southeastern Pennsylvania v. Casey as a precedent about precedent. This Article illuminates the treatment of stare decisis in the Dobbs majority opinion, focusing on its approach to reliance. I explain why the Justices joining that opinion determined that whatever reliance interests had attached to the precedents protecting the right to abortion were irrelevant for the purposes of a stare decisis analysis. The Justices' refusal to recognize the reliance interests at stake here, I argue, is inconsistent with the Court's previously prevailing stare decisis jurisprudence and is also mistaken as a matter of first principles, undermining basic rule of law values that stare decisis is meant to protect.
