In 2008, in the majority opinion of Justice Antonin Scalia in District of Columbia v. Heller, recognizing an individual right to own guns under the Second Amendment, he ignored the leading precedent by focusing on its trial history.
The defendants did not appear in the case, did not file a memorandum, nor did they appear at a plea deal; the court heard from no one but the government (reasonably enough, you would think, not to make that case the beginning and end of this court’s consideration of the Second Amendment),” wrote Judge Scalia, who died in 2016.
Professor Lazarus said it was one thing to look at the trial history of a Supreme Court decision to better understand it and another to prioritize it more or less depending on what the lawyers had or hadn’t argued.
Chief Justice Roberts’ question about Roe was irrelevant in a sense, as the importance of fetal viability was thoroughly argued in Planned Parenthood v. Casey, the 1992 decision that reaffirmed Roe’s core position.
That set Roe a “super-duper precedent,” Pennsylvania Senator Arlen Specter said during Chief Justice Roberts’ hearings. The Chief Justice didn’t adopt Mr. Specter’s terminology, but he didn’t argue with the senator’s bigger point.
“The Casey decision itself, which applied the principles of stare decisis to Roe v. Wade, is itself a precedent of the court, entitled to respect under the principles of stare decisis,” said Chief Justice Roberts, adding: “ That is itself a precedent… It is a precedent for whether or not to revise the Roe v. Wade precedent.”
Professor Lazarus said the court’s recent approach to the precedent points in a different direction.
“The decision-making power, even for a case that is labeled as super precedent, is dwindling in the courts,” he said. “And advocacy history plays a part.”