Precedent and Originalism: Legal Interpretation on the Contemporary Supreme Court

Abstract

In 2022, the United States Supreme Court overruled some of its most contentious decisions, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, which had been law for several decades. Four of the five votes in the case, Dobbs v. Jackson Women’s Health Organization, to overturn Roe and Casey came from the self-described originalist Justices— Justice Thomas, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett. Originalism is one of the most prominent modes of judicial interpretation, but it often conflicts with stare decisis, also known as precedent. This paper explores how originalism and precedent can work together, how they worked together in the Dobbs decision, and the potential implications of the Dobbs stare decisis analysis on other substantive due process precedents.