Introduction
In reliance on judicial decisions, people form expectations about their legal rights and duties. And based on these expectations, they structure their lives and form their understandings of their society and their place in it. When precedent is overturned, people’s expectations might be upset and their lives disrupted in ways that undermine their autonomy and offend their dignity. Accordingly, when the United States Supreme Court engages in a stare decisis analysis to determine whether some precedent should be overruled, it treats reliance on the precedent as a reason against overruling it.
In Dobbs v. Jackson Women’s Health Organization,1 the Justices joining the majority opinion claimed that no real reliance interests were at stake in the precedents protecting the right to abortion, most notably Roe v. Wade2 and Planned Parenthood of Southeastern Pennsylvania v. Casey.3 The Justices determined that only tangible or “concrete” reliance counts for the purposes of stare decisis and there was no such reliance on Roe and Casey.4 For the Dobbs Court, if any reliance interests existed, they were “intangible,” unlike commercial interests based in property or contract rules, and therefore had no place in a stare decisis analysis.5
In considering whether to overturn Roe, the Court in Casey had advanced a different, more expansive view of reliance that recognized widespread expectation interests in a continued right to abortion.6 From the point of view of a majority of the Justices in Casey, that reliance weighed in favor of upholding Roe.7
As the Dobbs dissent observed, Casey is not only a precedent about abortion but also “a precedent about precedent”8 — and “until today, one of the Court’s most important.”9 The Dobbs Court, however, found Casey’s stare decisis framework to be “exceptional” and indefensible.10 And it set out to overrule Casey on the matter of stare decisis itself.
The main differences between Casey’s stare decisis framework and Dobbs’s are (1) the different conceptions of reliance advanced in the two decisions, and (2) the emphasis on the nature of the error and in particular the notion of “egregious” error that Dobbs relies on.11 In this Article, I mostly set aside the nature-of-error issue, which I plan to take up in future work. My aim here is to illuminate the Dobbs decision as a precedent about precedent on the matter of reliance interests. I unpack the Court’s conception of reliance and contrast it with reliance as conceived in Casey and various other cases. Examining the reliance interests that the Dobbs decision upsets, I suggest that people do have reliance interests in the right to abortion, both tangible interests of the type that should count even under the narrow conception of reliance that the Dobbs Court favors and more abstract interests that count under the Casey conception of reliance but not the Dobbs one. Further, I argue that Casey was correct to insist that so-called “intangible” forms of reliance on precedent should factor into a stare decisis analysis, even if the Justices in that decision could have been clearer about the nature of this reliance and why it matters.
The Article proceeds as follows. In Part I, I explain how the protection of reliance interests features as a central purpose underlying the doctrine of stare decisis; this purpose is not intrinsically valuable but serves values that are. And I explain how, in a legal system that recognizes stare decisis, courts have a special responsibility to take reliance interests into consideration before overruling a precedent. Next, in Part II, I take up the Dobbs Court’s approach to reliance: first, I examine what exactly the Court meant by reliance of the “concrete” in contrast to the “intangible” variety, and I suggest that, despite the Court’s claims to the contrary, there were concrete reliance interests in the abortion precedents; second, I address the Court’s stated reasons for dismissing the kind of “intangible” reliance that Casey gave credence to and suggest that those reasons are specious. Then, in Part III, I explore in more detail the nature of intangible reliance; I defend its value and argue that the presence of intangible reliance places a weight on the scales against overruling precedent. Part IV delineates some limiting principles and responds to some objections to the view of reliance that I favor. And in the Conclusion, I consider what Dobbs as a precedent about precedent might mean for the Court’s stare decisis jurisprudence going forward.
Continue Reading in the Full PDF
* Assistant Professor, University of Wisconsin Law School. For helpful comments on drafts and discussions of ideas, I’m grateful to Joshua Braver, Anuj Desai, Blake Emerson, Michael Gerhardt, Abner Greene, Tara Grove, Randy Kozel, George Letsas, Sebastian Lewis, Hillary Nye, Richard Re, Kate Redburn, Paul Rink, David Schwartz, Mitra Sharafi, Fred Smith, Nicos Stavropoulos, Maxwell Stearns, Rafi Stern, Jason Yackee, and participants of the American Association of Legal and Social Philosophy 2022 Conference and the Wisconsin Law Review’s 2022 Symposium. Thank you to Leigha Hildur Vilen for excellent research assistance. And thank you to the students at the Harvard Law Review for the excellent editorial work. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin Madison with funding from the Wisconsin Alumni Research Foundation.