A Modified Approach to Overruling for the 'Conservative Majority'

Abstract

In Dobbs, the Supreme Court demonstrated its willingness to overturn precedent. Given this willingness, the question becomes what other precedents may be reconsidered next. Although most Justices, past and present, agree on the importance of certain factors in reconsidering precedent, there is not a unified framework for how to apply these factors. In Dobbs, the majority's opinion considered several factors generally in coming to its decision. Despite joining the majority, Justice Kavanaugh reiterated his support for a framework he first set forth in Ramos. We argue that Justice Kavanaugh's goal of having a set framework is important as it can lead to more predictability and a more objective analysis of when to overturn precedent. Despite our agreement, we propose modifications to the framework to make it more conceptually sound and predictable.

Keywords: Stare Decisis, Overruling, Supreme Court

JEL Classification: K10, K30, K40