Prelogar argues that everyone in the country knows what the Court has held on abortion. In fact, polling has found that about a third of Americans don’t even know Roe had to do with abortion. Pew has found that a majority of Americans under 30 don’t know Roe was about abortion.
Kagan: Tell us more about the reliance interests. In Casey, they seem more airy than grounded.
SG: People make decisions based on reproductive control.
Alito pins down SG on overruling decisions just because they are egregiously wrong. Could Plessy have been overruled without some intervening change in facts? SG first argues that Brown required changed circumstances, then backs up and says yes, Plessy should have been overruled in 1897 because it was wrong in the first place – which is the answer Alito wanted.
Justice Alito to SG Prelogar: So there are circumstances when a case can be overruled because it was egregiously wrong, even if nothing has changed?
Alito has Prelogar spinning in circles.
SG: Yes, Plessy should have been overruled a year later.
Alito: So decision can be overruled simply because it's egregiously wrong.
Alito: There was a lot of reliance — improper reliance, to be sure — on Plessy.
Thomas: “I understand we're talking about abortion here. But what is confusing is that if we were talking about the Second Amendment, I know exactly what we're talking about. If we're talking about the Fourth Amendment, I know what we're talking about. Because it's written in there. What specifically is the right here that we're talking about?”
Alito: If Plessy was re-argued a year later, could Court not have overruled it?
Sotomayor is arguing that there should be more stare decisis weight to decisions that take questions away from the voters in favor of individual rights. There really is not a principled reason for this distinction – if anything, the Court should be more eager to overrule itself when it has wrongly taken an issue away from the voters.
Plessy was a horrible decision, but it still left some states free to protect black equality. Dred Scott, by stripping the political system of the power to do so, was worse.
Sotomayor attempts to distinguish overruling Roe from past overrulings because those overrulings have expanded liberty. Problem for her argument is Dred Scott, which protected a supposed (though grossly unjust) liberty–just as Roe/Casey does.