Deciding when and how to ignore stare decisis is, well, a judgment call. Still, some principles apply. One common principle is that the longer a decision has remained in place, the stronger the deference it is owed. Yes, sometimes it takes decades to realize error, but generally speaking, society’s “reliance interests” grow stronger the longer a ruling has stood. It’s easier for the body politic to overturn a new legal understanding than one that has been relied on for decades, with other laws and regulations growing up around it.
Here’s where Roberts’s intellectual inconsistency is maddening. The Whole Woman’s Health case was decided a mere four years ago. That’s not much time for an entire body of state and federal statutes to grow up around it. If it was an erroneous decision then, as he believed at the time, then surely it should be overturned now, before its tentacles reach further and further into regulations and practices. Right?
Just four years ago, Roberts was on the losing side of that case, holding that the Texas law in question should indeed be allowed to stand. So, why not stick to his guns and say the same about the Louisiana law at issue in June Medical Services?
If Roberts were a stickler for stare decisis, that would be one thing. The simple fact is, he is not.