One man's opinion...
.."It turns out that the justices could not resist transforming Ramos into yet another quarrel over stare decisis, or respect for precedent. Gorsuch, Ginsburg, and Breyer say Powell’s concurrence has no precedential force because it’s just one man’s opinion, based on a theory that’s no longer good law. Sotomayor and Kavanaugh seem to think it is real precedent but should still be overruled. Thomas never cared about precedent and still doesn’t. Meanwhile, Alito, Roberts, and Kagan accused the majority of cavalierly overturning an entrenched precedent with no plausible justification, subjecting Oregon and Louisiana to “a potential tsunami of litigation.”
This contretemps over precedent is really just another skirmish in the court’s endless war over abortion rights. The five conservative justices have made clear they don’t think the Constitution protects the right to terminate a pregnancy. The real question is whether any of them will still stand by the court’s abortion precedents out of a duty to stare decisis. Kagan, the court’s most faithful observer of stare decisis, joined Alito’s dissent because she has been hammering the conservatives for trashing precedent when it suits them. She doesn’t want to be a hypocrite and abandon her principles just because she prefers a certain outcome. If the conservative justices overturn Roe v. Wade, Kagan can pillory them for flouting a principle she holds dear.
Sotomayor, too, was frustrated by Gorsuch’s dismissive approach to precedent. She penned a brief dissent declaring that stare decisis, while generally important, is “at its nadir” in criminal procedure cases that “implicate fundamental constitutional protections.” Kavanaugh, by contrast, wrote a cryptic concurrence setting out his own test for stare decisis that seems tailored to justify overturning Roe on the grounds that it is “grievously or egregiously wrong.”
