In a talk yesterday, Justice Kagan emphatically stated that she will “never accept” the Supreme Court’s end-of-Term ruling in Rucho v. Common Cause, in which the Court ruled by a 5-4 vote that claims of excessive partisan gerrymandering present “political questions” that lack any judicially discoverable and manageable standards for resolving them and therefore cannot be decided by the federal courts. Kagan explained that she wrote her dissent in part “to convince the future”—to help set the stage for the case’s eventual overruling.
I think that Kagan is completely right on the meta-principle that she is setting forth—that some rulings are so wrong that no justice should ever be obligated to acquiesce in them. Whether that meta-principle fairly applies to Rucho is, of course, a separate matter. For present purposes, I will simply note that that meta-principle amply explains why the Supreme Court justices who recognize how “tragically wrong” Roe v. Wade is (to borrow Kagan’s assessment of Rucho) should vote to overrule it.
More broadly, Kagan’s comments illustrate that there are no neutral principles of stare decisis that can be divorced from underlying understandings of what the Constitution means.