Can/should the Court overturn itself, when a past precedent was clearly at odds with the Constitution?
This question was raised but not fully discussed in yesterday's (surprisingly candid) oral arguments over the new abortion case, Dobbs.
I answer YES! According to a wikipedia article on the topic, The Court has overturned itself over 300 times. How many of those times did the Court invoke the ridiculously strong standard of stare decisis they expect for Roe and Casey? The lesson is that the status of stare decisis is and has been a disputed question for the court.
For more on this question, one should read Clarence Thomas' opinion in US v Gamble:
In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law...
...By applying demonstrably erroneous precedent instead of the relevant law’s text—as the Court is particularly prone to do when expanding federal power or crafting new individual rights—the Court exercises 'force' and 'will,' two attributes the People did not give it.
We should restore our stare decisis jurisprudence to ensure that we exercise 'mer[e] judgment', which can be achieved through adherence to the correct, original meaning of the laws we are charged with applying. In my view, anything less invites arbitrariness into judging.
Clarence Thomas goes on to distinguish this weaker stare decisis model from the stronger, British-influenced model of it. He argues we shouldn’t follow the British model because British courts are significantly different, lacking a written constitution (the very reason we have judicial review, as we learn from Marshall in Marbury).
I have always agreed with Clarence Thomas’ practice on this topic. He is all for “activism” in overturning bad precedents. This is different than Antonin Scalia’s “faint-hearted” originalism. With Thomas, I say we should be STOUT-hearted originalists. In Gamble, Thomas articulated why that is the correct originalist view.
However, even within the Federalist Society not all are convinced; this internecine debate among Conservatives likely may be what this case will turn on- and any future attempt to restore the Constitution. See the question starting at 1:20:30
As Americans, we should never forget Lincoln's 1st Inaugural warning about the Court after the experience of Dred Scott:
the candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal
The Justices are human too, in spite of the appearances they put on; they make mistakes. They should admit that the decision they made back in 1973 STUNK, it was a political for the liberal side, and overruling Roe is simply the Court doing its job of judging.
For those of us who are pro-life, what the Supreme Court put us through for 50 years is the same exasperation Lincoln described with regard to the Dred Scott. We would say this for unborn children:
They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is.
We will never stop until the lock of Roe is turned.
Should be common-sense, obvious-as-pie. I mean the impossibility of defending Roe, or any decision, via the strong sort of stare decisis argument you attack here.