Newsweek has published my new op-ed on Dobbs and legitimacy. In short, Dobbs overruled Casey's linkage of stare decisis and legitimacy, and indeed redefined legitimacy altogether. Finally, the Supreme Court can escape David Souter's shadow.
Here is the introduction:
Three decades ago, three Republican Supreme Court appointees reaffirmed Roe v. Wade because of three words: "stare decisis" and "legitimacy." In Planned Parenthood v. Casey, Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter saved the landmark abortion precedent to ensure that people would not view the Court as a political institution.
Three decades later, in Dobbs v. Jackson Women's Health Organization, five Republican Supreme Court appointees found that stare decisis did not justify saving Roe v. Wade. But equally significant was that the majority rejected Casey's conception of "legitimacy." No longer would the Court's legitimacy be tied to public opinion. To the contrary, a legitimate Court must decide, and even overrule cases without regard for popular sentiments. This monumental shift—far more than any new jurisprudence on abortion—will define how far this new conservative Court will have the fortitude to go.
