I wrote the other day about how surprising it was to see Justice Breyer lead off his questioning at the Dobbs oral argument by regurgitating some lines from the Souter-Kennedy-O’Connor opinion in Casey.
The gist of the Breyer/Casey argument is that it’s very important to not overturn a precedent if there is political pressure to do so. It’s a foolish argument because in any contentious case challenging a precedent there is political pressure to overturn the precedent and there is political pressure to uphold the precedent. In the Dobbs case, it is obviously true that the side applying the most political pressure is the side threatening to pack the Supreme Court if Roe is not upheld.
Over at Slate, liberal writer Mark Joseph Stern is unsparing in his criticism of Justice Breyer’s argument: “During Arguments Over Roe’s Fate, Justice Breyer Played Right Into the Conservatives’ Hands.”
“[Breyer] zeroed in on the worst possible argument for preserving the constitutional right to abortion in light of the conservatives’ approach to precedent,” Stern writes. “He read aloud several of the most vexed and disputed sentences of modern constitutional law as though they were widely embraced as the gospel truth.”
The Casey troika provided several reasons for this turnabout, including a generation’s reliance on the promise of abortion access. But a more contentious justification involved an overt consideration of public opinion. Noting “political pressure” to reverse Roe, the court declared: “To overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.” In other words, if the court overturned Roe in the face of so much pressure, the public would perceive it as weak, waffling, and wedded to popular opinion—in a word, illegitimate.
Conservatives despised this conception of stare decisis. In his dissent from the bench, Chief Justice William Rehnquist asserted that “once the court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself.” Justice Antonin Scalia dismissed the rationale as “almost czarist arrogance,” providing a mocking summary: “We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change—to show how little” anti-abortion activists “intimidate us.”
While Stern singles out Breyer, it is worth noting that Justices Sotomayor and Kagan both freely chose to echo Breyer’s argument.