Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?

Abstract

May Congress abrogate the judicial policy of stare decisis and direct the Court to decide constitutional cases without according decision-altering weight to its precedents? That is, could Congress require the Court not to follow a precedent that the Court is otherwise persuaded is wrong on the merits? This Article argues that the answer is yes. Congress has power to pass such a statute pursuant to the Necessary and Proper Clause, as a law carrying into execution the judicial power of Article III. Stare decisis is not a constitutional requirement, but rather a judicial policy judgment. Examination of each of the factors embodied in that judgment shows that it is one appropriate for legislative determination. A statute abrogating stare decisis would not encroach on the "judicial Power" of Article III, because it would not interfere with any exclusive constitutional prerogative of the judiciary. Such a statute would neither prescribe outcomes nor invalidate final judgments. It would merely require courts to decide cases on the basis of the judges' best understanding of the Constitution. A statute abrogating stare decisis might make a difference to the outcome of cases like Planned Parenthood v. Casey, in which the Court reaffirmed the constitutional right to abortion. If the Justices can be taken at their word, Casey rests almost entirely on the doctrine of stare decisis rather than on the merits. Taking Casey seriously on its own terms, a statute abrogating stare decisis in substantive due process cases should lead to a judicial decision overruling Roe v. Wade.