Precedent Is Dead: The Roberts Court and the End of Stare Decisis
When the Supreme Court overturned Roe v. Wade, it didn’t just end abortion rights—it announced a new rule: duration isn’t durability. A half-century of settled law can be erased if five justices decide the old case was “egregiously wrong.”
And Dobbs wasn’t an isolated earthquake. It fits a broader pattern: since 2018, the Court has formally or effectively overruled major precedents spanning roughly 200 years of combined legal stability, across abortion, administrative law, church-state doctrine, affirmative action, and labor rights.
The result is a jurisprudence where stare decisis increasingly functions less like a constraint and more like a permission slip: invoked to preserve what the majority likes, dismissed when it blocks what the majority wants.
What Stare Decisis Was Supposed to Do
Stare decisis—“stand by things decided”—is the rule-of-law technology that makes a common-law system possible. It’s supposed to keep outcomes predictable, stabilize expectations, and protect judicial legitimacy by ensuring the Court isn’t just will dressed up as judgment.
Traditionally, when the Court considered overruling itself, it treated reversal as exceptional—something requiring more than a bare claim that the earlier case was wrong. The classic cluster of considerations is familiar: workability, reliance, doctrinal coherence, and changed facts or law, plus an overarching demand for “special justification” beyond disagreement.
The New Template: “Egregiously Wrong” Eats Everything
The modern through-line is not just “the Court is overturning precedents,” but how it is doing so.
Across major reversals, the majority repeatedly:
- brands the old decision as fundamentally flawed from inception,
- emphasizes that stare decisis is “at its weakest” in constitutional cases,
- and treats massive reliance and institutional settlement as insufficient once the case is labeled “egregiously wrong.”
This is why the modern stare decisis analysis increasingly feels like a formality: the factors aren’t constraints so much as post-hoc rationalizers for a result already chosen.
Dobbs Didn’t Just Overrule Roe—It Rewrote Reliance
On June 24, 2022, the Court overturned Roe and Casey. The majority framed Roe as “egregiously wrong,” then applied a “history and tradition” approach to declare abortion outside constitutional protection.
But the most destabilizing move wasn’t the holding—it was the method. The majority narrowed reliance interests to what it called “concrete” reliance (property/contract-like interests) and dismissed broad life-planning reliance—people organizing intimate, economic, and social lives around a right—as “intangible” and therefore weightless.
That is a rule that threatens nearly every modern civil-liberties precedent, because most rights don’t generate “commercial” reliance—yet they generate the deepest kind of human reliance: people build lives around them.
The Campaign: Not One Case, Many
The pattern is visible in the big landmarks:
- Dobbs (abortion),
- Loper Bright (Chevron),
- Kennedy v. Bremerton (Lemon),
- Students for Fair Admissions (affirmative action),
- Janus (union fees).
In each, the Court uses the language of restraint while practicing aggressive revision—often insisting it is merely restoring the Constitution’s “true meaning,” even when the practical effect is massive legal upheaval.
Selective “History and Tradition” and the Major Questions Escape Hatch
A central critique is methodological selectivity. The Court increasingly uses “history and tradition” as a solvent—expansive when it enlarges favored rights, restrictive when it contracts disfavored ones. The contrast between Dobbs and Bruen is emblematic: similar rhetoric, diverging historical filters, result-driven application.
The same theme appears in administrative-state cases. Before Loper Bright formally buried Chevron, the “major questions doctrine” operated as a way to curb agencies without confronting the older framework directly—another example of the Court inventing new tools to get preferred outcomes while claiming it is merely applying law.
The Shadow Docket: Precedent Erosion Without Opinions
The Court can undermine precedent without overruling it—by moving decisions into emergency posture.
The “shadow docket” describes consequential, often unexplained emergency orders. Emergency practice has metastasized from rare true-emergency relief into a mechanism for major legal change without full briefing and reasoning.
The scale matters: emergency applications spiked dramatically compared with earlier eras. And in episodes like SB8, rights can be nullified through procedural design and emergency denial—real-world overruling without doctrinal accountability.
The One-Way Ratchet
When doctrine becomes selective, stare decisis becomes asymmetrical: a ratchet that preserves one side’s wins while treating the other side’s precedents as provisional.
Precedent begins to operate as a one-way ratchet—constraining liberal majorities while providing no meaningful limit on conservative ones.
The Legitimacy Collapse
Legitimacy is the Court’s only real power. It has no army. It relies on belief that its judgments are law, not politics.
When precedent becomes provisional—and when major legal change is delivered through emergency orders without full explanation—the Court begins to look less like law and more like politics. Public confidence collapses; rulings are filtered through partisan lenses.
That matters because legitimacy is not a vibe—it’s the precondition for compliance. When the Court teaches the public that rights are secure only until the next appointment, it trains everyone else to treat law the same way: as conditional, partisan, and temporary.
What Remains
The constitutional order depends on shared premises: that precedent constrains, that the Court is not a super-legislature, and that law is more than power in robes.
When those premises collapse, the Court may discover that the prize it won—maximum power to rewrite the law—comes with the cost: judicial irrelevance, because a Court that looks like politics cannot demand obedience as law.
This is the eighth article in a series examining democratic decline. The next article explores the implications of Dobbs: if 50-year precedents can fall, what rights remain secure?