Stare Decisis in Obergefell and Dobbs

Justice Kagan, along with her fellow justices have resorted to the same tune regarding stare decisis in recent years. It was clear that they dreaded the day when the Court’s majority would decide against them. Roe. The Court’s liberals, however, threw caution to wind at least once.

I am speaking, naturally, about Obergefell v. Hodges. This decision was overturned Baker v. NelsonThis is to not mention millennia-old traditions. Justice Kennedy ruled Baker Without any discussion whatsoever of stare decisis.

Now, the Court holds that gay couples can exercise their fundamental rights to wed. They can no longer deny this freedom. Baker v. Nelson Petitioners have ruled that the State laws in question are invalid and will now declare them null. This means that same-sex couples cannot be married on civil grounds under the same conditions as their opposite-sex counterparts.

All that’s left to say. Justice Kennedy did not mention any of these. Casey factors. One sentence. It reminds me of how the Warren Court effortlessly overruled precedents. Mapp v. OhioGideon v. WainrightMiranda v. Arizona, Katz v. United StatesThese and other cases. These cases that took the power away from states were not an indication of return to strict impartiality.

Since I was a child, I have believed that Justices in the Obergefell Most were permanently forbidden to profess fidelity in stare decisis. Justice Souter said that the world is created every day.