The Role of Reliance in Stare Decisis Doctrine

Authors

• Rochelle Hestnas, Fordham University School of Law

Keywords

abortion rights; abortion precedents; stare decisis; constitutional law; reliance; reliance interests; integrity; Roe v. Wade; Casey v. Planned Parenthood of Southeastern Pennsylvania; Dobbs v. Jackson Women's Health Organization; Supreme Court; Ronald Dworkin; Nina Varsava; Seana Shiffrin; Scott Hershovitz; precedent; long-standing precedent; concrete reliance; intangible reliance; legal theory; reliance theory; individual rights; constitutional liberties; personal liberties; Obergefell v. Hodges; legal philosophy; rule of law

Abstract

The U.S. Supreme Court’s recent treatment of reliance interests in stare decisis doctrine is in flux. The Court has overruled long-standing precedent such as Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with scant analysis as to how reliance interests factor into stare decisis doctrine, despite continuing to name reliance as a factor that should be considered. Arguments for whether and how reliance interests deserve protection are inherently challenging because it cannot be the case that every precedent should stand. Using Dobbs v. Jackson Women’s Health Organization as a case study, this Note analyzes the Court’s claim that only concrete reliance typically found in private law counts in a stare decisis analysis. And this Note assesses the Court’s claims as to the absence of concrete and inconcrete reliance on Roe and Casey. In that context, this Note critically evaluates two pieces of recent scholarship that retheorize the protection of reliance interests—Professor Seana Shiffrin’s disadvantaged group-inequity argument for concrete reliance and Professor Nina Varsava’s autonomy-dignity grounds for intangible reliance.

Ultimately, this Note proposes a new framework for the analysis of reliance interests in stare decisis doctrine. When the Court considers whether to uphold or overrule precedent pertaining to individual rights, a proper reliance interest analysis should recognize that reliance can be both psychological—including intangible harms—and diffuse, that is, reliance can encompass persons beyond the bearers of the right. This Note grounds the diffuse, psychological reliance framework proposed in Professor Ronald Dworkin’s theory of integrity, arguing that integrity places a procedural demand on the Court to conduct a good-faith inquiry that accounts for the ways people and society may have been transformed as a result of access to the right at stake. And to eliminate the risk of concealing moral claims underneath claims that reliance is not present, the Court must weigh the value of the planned conduct, explicitly stating the outcome of its assessment. Strengthening stare decisis in this way is critical as the Court continues to overrule long-standing precedent without meaningful consideration of reliance interests.

Recommended Citation

Rochelle Hestnas, The Role of Reliance in Stare Decisis Doctrine, 95 Fordham L. Rev. 197 ().
Available at: https://ir.lawnet.fordham.edu/flr/vol95/iss1/4