The Stare Decisis Analyses in Dobbs and Loper Bright.
Two year ago, the Court decided Dobbs, the most important decision ever concerning stare decisis. How many times does Chief Justice Roberts cited Dobbs in Loper Bright? Zero. I suspect the Chief would prefer to pretend that Dobbs never happened. Indeed, Justice Kagan’s dissent calls out Roberts for not citing his own Dobbs concurrence, where it is directly on point!
On the other side of the balance, the most important stare decisis factor—call it the “jolt to the legal system” issue—weighs heavily against overruling Chevron. Dobbs, 597 U. S., at 357 (ROBERTS, C. J., concurring in judgment). Congress and agencies alike have relied on Chevron—have assumed its existence—in much of their work for the last 40 years.
But the failure to cite Dobbs raises questions about what is the appropriate stare decisis framework for constitutional law decisions. Roberts never calls Chevron “egregiously wrong.” He only goes so far as to say that Chevron was “fundamentally misguided” and it Chevron “gravely erred.” Much more temperate language. Instead, he goes back to Knick and Janus:
Stare decisis is not an “inexorable command,” Payne v. Tennessee, 501 U. S. 808, 828 (1991), and the stare decisis considerations most relevant here—”the quality of [the precedent’s] reasoning, the workability of the rule it established, . . . and reliance on the decision,” Knick v. Township of Scott, 588 U. S. 180, 203 (2019) (quoting Janus v. State, County, and Municipal Employees, 585 U. S. 878, 917 (2018))—all weigh in favor of letting Chevron go.
Chief Justice Roberts takes a page from the stare decisis analysis in Janus: a “crumbling precedent” that has been whittled away is on a shaky foundation:
This Court, for its part, has not deferred to an agency interpretation under Chevron since 2016. See Cuozzo, 579 U. S., at 280 (most recent occasion). But Chevron remains on the books. So litigants must continue to wrestle with it, and lower courts—bound by even our crumbling precedents, see Agostini v. Felton, 521 U. S. 203, 238 (1997)—understandably continue to apply it.
The experience of the last 40 years has thus done little to rehabilitate Chevron.
Still, even though Dobbs was not cited, there are overlaps with that case.
Dobbs explained that the Court had, over the decades, distorted other areas of the law to account for Roe. I referred to these cases as the epicycles of Roe. In Loper Bright, Chief Justice Roberts identifies various ways that the Court has justified the “fiction” of Chevron. He observed that the Court has “spent the better part of four decades imp
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