I will conclude my three-part series in praise of the Dobbs leak by making a modest proposal. In brief, my proposal is this: Supreme Court judges should, as a matter of course, always release their draft opinions in any case in which one or more members of the Court are considering whether to overrule a previous precedent. Think about it for a moment. Stare decisis, or the common law doctrine of binding precedent, is central to the “rule of law”, since judges are thereby required to apply and uphold their own rules in future cases, absent some special circumstances (see image below). Stare decisis is also what makes the third branch so special. Members of Congress and the president, for example, are not bound by their previous decisions, but judges generally are. Accordingly, judges who are willing to overrule their courts’ previous precedents should be required to give the public some notice or warning of their destabilizing intentions, right?
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