Chief Justice Roberts’s Question About Stare Decisis and Originalism
During oral arguments in Dobbs, Chief Justice Roberts asked a question about the relationship between stare decisis and originalism that I hadn’t considered.
CHIEF JUSTICE ROBERTS: On stare decisis, I think the first issue you look at is whether or not the decision at issue was wrongly decided. I’ve actually never quite understood how you evaluate that. Is it wrongly decided based on legal principles and doctrine when it was decided or –or in retrospect?
Because Roe –I mean, there are a lot of cases around the time of Roe, not of that magnitude but the same type of analysis, that -that went through exactly the sorts of things we today would say were erroneous, but do we look at it from today’s –if we look at it from today’s perspective, it’s going to be a long list of cases that we’re going to say were wrongly decided.
When Roe was decided in 1973, the Court was decidedly non-originalist. Rather, the excesses of the pragmatic Warren Court were still fresh. The Court would make stuff up because
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