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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

(Continued from page 1)

Workability cuts for the retention of the test. By workability, the court meant whether a test was sufficiently specific that a court could administer it. The Casey four-factor test easily meets this standard, as most of the court's tests will do.

The change in fact factor also cuts for keeping the test. Here, the court looks to see if there have been changes either in facts or perceptions of constant facts. One example the joint opinion gave was the changed view of racial segregation and its harms that permitted Brown v. Board of Education to overrule the 1897 case Plessy v. Ferguson, which upheld the doctrine of "separate but equal." The court's other example reflected similar seismic changes in the nation. No such change has occurred since 1992 that would undermine the test.

In contrast, social reliance cuts against retaining Casey's stare decisis standard. Although we the public might legitimately rely on the basic idea of stare decisis, we cannot rely on any particular formulation of it. This is because most of us are unaware of the specific test the court formulated.

Most significantly, change in doctrine also cuts for jettisoning the test. Kennedy, O'Connor, and Souter observed that a precedent that was a "remnant of abandoned doctrine" would be ripe for overruling. Arguably, the Casey test is such a remnant. The court has repeatedly overruled precedents without engaging in a full Casey analysis. In a 1995 affirmative action case, the court overruled a 1990 precedent without applying all of the factors. Similarly, in Lawrence v. Texas, the 2003 case striking down a state sodomy statute, the court overruled a 1986 precedent without applying the full test. The 1995 and the 2003 cases were written by two of the Casey opinion's authors—O'Connor and Kennedy, respectively.

The Casey stare decisis test, then, leaves more than enough leeway for the court to depart from it. And even though it has not formally overruled this part of Casey, the court began moving away from it only three years after creating it. So, why did the court bother to outline such a comprehensive test in the first place?

The answer can be found in the court's statement that all of the test's factors cut in favor of upholding Roe. The best way of understanding Casey is as the court's way of saying that any reasonable standard of stare decisis would lead to the conclusion that Roe should stand. What was at stake in Casey was not a neutral attempt to advance a general test for stare decisis, but a largely successful attempt to entrench Roe. This is why those who celebrate Roe, and the national right to abortion it established, should also celebrate 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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