Some modern judges and academics have strayed from the traditional understanding of precedent that is rooted in the common-law maxim Stare decisis et quieta non movere. They tend to emphasize the first two words, Stare decisis (“Stand by things decided”), and ignore the rest, which means “and do not disturb settled points.” Settling the law is the primary justification for this doctrine’s application, but precedent is entitled to stare decisis respect only if it actually is settled. Roe v. Wade is radically unsettled because the Court has abandoned the original constitutional rationale for Roe and yet no majority of the …
This article appears as “Unsettled” in the November 29, 2021, print edition of National Review.
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