Bench Memos

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Casey and Stare Decisis


Specter, as Kathryn notes, has wasted no time this morning getting to the abortion issue. His angle of attack is to ask Roberts about stare decisis–the doctrine of precedent–as it was described in 1992’s abortion ruling in Planned Parenthood v. Casey by the controlling joint opinion of O’Connor, Kennedy, and Souter.

But there was another account of how to think about precedent in that case, given by the man Roberts has been nominated to replace, and for whom he once clerked. William Rehnquist began his dissent (joined by Scalia and Thomas) in the Casey decision by deriding the joint opinion’s “newly minted variation on stare decisis,” and declaring: “We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases.” And Rehnquist went on to set the record straight on what that traditional approach truly was.

Just in case anyone was wondering whether there was only one view of how to deal with precedents in that case . . .


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