To overrule Roe v. Wade, the Court’s five conservatives will first have to explain why they’re setting aside a 46-year-old precedent. A separate case decided this week provides hints about how they’ll do it.
In this column, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
When issuing opinions, judges adhere to a principle called stare decisis, which refers to the notion that they should rule in a given case according to the rulings they issued in similar cases in the past. This reliance on precedent provides simple, common-sense benefits: It leads to consistent and predictable judicial outcomes, reduces the number of disputes that result in actual litigation, and allows for the coherent, long-term development of law.
Again, the application of these factors to interstate sovereign immunity does not make for especially compelling reading. But it is easy to see how the same justices might use the same list to overturn Roe and Casey or, at the very least, to render those cases' promises meaningless. Liberals and conservatives alike have long criticized Roe as a sloppily written opinion—an example of judges arriving at their preferred conclusion and then reverse-engineering a legal explanation for it.
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