“Special rule” for “the rare watershed” – Breyer is leaning really hard on super-duper-precedent concepts. (Side note: I cannot hear “super duper” without thinking of Spike Jones).
I find Breyer's implication here baffling. Even if Roe and Casey had “resolved” the issue of abortion in the public imagination, it would be irrelevant to the core question of constitutionality. But it didn't.
Scott Stewart on stare decisis to Justice Breyer: Casey was not a great example of letting precedent stand.
Absurd for Breyer to raise prospect of overturning Roe under fire as if there is no fire directed at justices to uphold it.
Stewart: Casey has failed. Casey itself reconceived precedent.
Breyer's idea that the people decided through the Court what abortion policy would be, nuts though it is, is really in keeping with the quasi-mystical “speaking before all others” language of Casey.
“That's the opinion of the Court!” Breyer says with a flourish, as if this is news when he was just reading from Casey.
Very unusual for Justice Breyer to be giving a speech like this during oral argument.
Breyer quotes Casey on stare decisis to argue that unless the Court has “the most compelling reason” to overturn Roe, doing so under political pressure would undermine the Court’s legitimacy. Of course, it is Roe itself that has undermined the Court’s legitimacy.
Breyer goes straight to some of the least defensible language in Casey: the part (“to overrule under fire”) where the Court essentially, as has been said, made itself a party to the case and ruled in its own favor.