In applying the doctrine of stare decisis in Dobbs, Justice Alito’s outstanding draft discusses at length “five factors” that “weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.” (See pp. 39-62.)
It turns out that many progressive advocacy groups think that the Alito draft gives too much deference to precedent.
Yesterday a dozen of these groups—including the ACLU, the Brennan Center for Justice, the Human Rights Campaign, and the Leadership Conference on Civil and Human Rights—filed an amicus brief in the Supreme Court in support of a certiorari petition (in Fitisemanu v. United States) that asks the Court to overrule the so-called Insular Cases and to hold that persons born in U.S. Territories are entitled to birthright citizenship under the Fourteenth Amendment.
In their brief, the ACLU and company set forth two “compelling” reasons why the Court should overrule the 120-year-old Insular Cases. Their first reason is that the Insular Cases “are ‘egregiously wrong as a matter of law,’” (quoting Justice Kavanaugh’s concurring opinion in Ramos v. Louisiana (2020)), as they have “no foundation in the text or original understanding of the Constitution.” Their brief explicitly states that they regard this defect as sufficient to warrant overruling those precedents:
The Insular Cases’ lack of foundation in the Constitution’s text, structure, or history is reason enough to overrule them. [Emphasis added.]
(I will note that in its amicus brief in Dobbs the ACLU maintains, implausibly, that a right to abortion is “firmly rooted” in the Constitution, so I am not suggesting that its positions in the two cases are formally inconsistent.)