With Roe at Risk, Justices Explore a New Way to Question Precedents

In 2008, in Justice Antonin Scalia’s majority opinion in District of Columbia v. Heller, which acknowledged a person proper to personal weapons underneath the Second Amendment, he discounted the main precedent by specializing in its litigation historical past.

The defendants “made no appearance in the case, neither filing a brief nor appearing at oral argument; the court heard from no one but the government (reason enough, one would think, not to make that case the beginning and the end of this court’s consideration of the Second Amendment),” wrote Justice Scalia, who died in 2016.

Professor Lazarus stated that it was one factor to look at the litigation historical past of a Supreme Court determination to perceive it higher and one other to give it roughly precedential weight relying on what the attorneys had or had not argued.

Chief Justice Roberts’s query about Roe was in a sense irrelevant, as the importance of fetal viability had been totally argued in Planned Parenthood v. Casey, the 1992 determination that reaffirmed Roe’s core holding.

That made Roe a “super-duper precedent,” Senator Arlen Specter of Pennsylvania stated at Chief Justice Roberts’s affirmation hearings. The chief justice didn’t undertake Mr. Specter’s terminology, however he didn’t quarrel with the senator’s bigger level.

“The Casey decision itself, which applied the principles of stare decisis to Roe v. Wade, is itself a precedent of the court, entitled to respect under principles of stare decisis,” Chief Justice Roberts stated, including: “That is itself a precedent. It’s a precedent on whether or not to revisit the Roe v. Wade precedent.”

Professor Lazarus stated the court docket’s latest method to precedent pointed in a totally different path.

“Stare decisis, even for a case that has been referred to as super-precedent, is on the wane at the court,” he stated. “And advocacy history plays a role.”

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