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Happy Birthday, Roe v. WadeOn the ruling's anniversary, its fans should celebrate another case, too.

By Kenji Yoshino
Posted Thursday, Jan. 18, 2007, at 12:10 PM ET
Illustration by Robert Neubecker. Click image to expand.

On the anniversary of Roe v. Wade next week, any celebration of that 1973 opinion must include a celebration of the 1992 case Planned Parenthood v. Casey. In Casey, the Supreme Court upheld the legal right to abortion. Along the way, the justices articulated a systematic test for when they could overrule their own precedents—and in applying it, found that Roe did not present such an instance.

It is not clear that such a systematic test is a good idea to begin with, or that this particular one works well. Luckily, however, the Casey test saves itself by leaving room for its own overruling. And in fact, the court seems on its way to doing so. Indeed, the Casey court may have been less interested in the test than in making Roe bulletproof. And in that end, it largely succeeded.

Many thought the Casey court would overrule Roe. In the years after Roe, conservative Republican presidents appointed justices to the court more or less with that agenda. Yet in Casey, three of those justices—Anthony Kennedy, Sandra Day O'Connor, and David Souter—wrote a joint opinion upholding Roe. They stressed that they were not saying Roe was correctly decided. To the contrary, they observed that the rule of stare decisis—the rule that precedent should generally be followed—dictated the result. "Under normal stare decisis analysis," the three justices' opinion stated, "the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have not for overruling it."

Coming from the Latin for "to stand by things decided," stare decisis is a hoary common-law principle. It goes to the heart of the rule of law. As the joint Casey opinion observed, "no judicial system could do society's work if it eyed each issue afresh in every case that raised it." On the other hand, as the opinion recognized, stare decisis has never been deemed an "inexorable command." As Oliver Wendell Holmes Jr. once observed, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV."

The difficulty, then, is deciding how much deference the doctrine of stare decisis requires in any given case. Before Casey, the Supreme Court treated this issue as an art rather than a science. In Casey, however, Kennedy, O'Connor, and Souter (here speaking for a majority of the court) took a more comprehensive approach, observing that the court usually looked to four "prudential and pragmatic considerations." Precedents would be likely to be overruled if they had proven to be unworkable as a practical matter; if there had not been general social reliance on the rule; if there had been subsequent changes in doctrine; and if there had been subsequent changes in fact. Applying these factors to Roe, the justices found that they all cut in favor of upholding the legal right to abortion.

Casey was a valiant attempt to pull together the principles that might constrain a judge from simply voting her ideology. But once Casey set forth a test for stare decisis, a vexing metaphysical problem came into view. As Yale Law School professor Akhil Amar has pointed out, it is difficult to know how much precedential weight to give a precedent, like Casey, that tells us how much precedential weight to give a precedent. If, for instance, we think that Casey got its stare decisis test wrong, are we still compelled to use that test in weighing whether the test should stand? Perhaps yes, given that stare decisis constrains a judge from ignoring a precedent just because she disagrees with it. Or perhaps no, given that a bad test could eternally entrench itself if any resistance offered within it were futile.

Fortunately, the Casey test gives the court enough discretion to supplant it. In other words, if we apply the four stare decisis factors to the four stare decisis factors, there is ample room for the court to overrule this part of Casey.

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Kenji Yoshino is the Guido Calabresi Professor of Law at Yale Law School and author of the recently published Covering: The Hidden Assault on Our Civil Rights.
Illustration by Robert Neubecker.
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