In today’s Wall Street Journal, Adam White has an excellent op-ed arguing that the Supreme Court should overturn Roe v. Wade precisely for the sake of stare decisis. Supporters of Roe often argue that the Court would be doing a disservice to the importance of precedent if it overturns its 1973 ruling, but White makes the case that not to do so would be the real stare decisis error:
Critics of Justice Samuel Alito’s leaked draft opinion charge that overturning Roe would condemn other precedents: Griswold v. Connecticut (1965), establishing the right to contraception; Obergefell v. Hodges (2015), the right to same-sex marriage; even Loving v. Virginia (1967), the right to marry regardless of race.
Yet Roe v. Wade is in a class by itself. No modern Supreme Court precedent has less connection to the Constitution’s text; none stir greater moral and political disagreement. And if some take Roe as the epitome of precedent, that is one more reason to overturn it. The doctrine of precedent is too important to be defined by such a poorly reasoned and divisive case.
Precedent, or stare decisis, is fundamental to our constitutional system. Alexander Hamilton urged in Federalist No. 78 that “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.” America’s judicial power reflected its English common-law heritage: By giving weight to earlier judges’ decisions, each new generation of judges would acknowledge their own fallibility and practice self-restraint.
The rest of the article is well worth reading in full, as he dismantles the notion that the Court is duty-bound to keep the travesty of Roe in place. While you’re at it, you should also read this piece by Clarke Forsythe from the “End Roe” special issue of the National Review print magazine late last year, in which he explains why Roe remains so unsettled and why it fails to meet the criteria for being upheld on stare decisis grounds.