Page:Dobbs v. Jackson Women's Health Organization - Court opinion draft, February 2022.pdf/64

64 that the matter was closed. Id., at 867. That unprecedented claim exceeded the power vested in us by the Constitution. As Hamilton famously put it, the Constitution gives the judiciary "neither Force nor Will." The Federalist No. 78, p. 523 (J. Cooke ed. 1961). Our sole authority is to exercise "judgment"—which is to say, the authority to judge what the law means and how it should apply to the case at hand. Ibid. The Court has no authority to decree that an erroneous precedent is permanently exempt from evaluation under traditional stare decisis principles. A precedent of this Court is subject to the usual principles of stare decisis under which adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy and Lochner would still be the law. That is not how stare decisis operates.

The Casey plurality also misjudged the practical limits of this Court's influence. Roe certainly did not succeed in ending division on the issue of abortion. On the contrary, Roe "inflamed" a national issue that has remained bitterly divisive for the past half-century. See Casey, 505 U. S., at 995 (Scalia, J., dissenting); see also R. B. Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1208 (1992) (Roe may have "halted a political process," "prolonged divisiveness," and "deferred stable settlement of the issue."). And for the past 30 years, Casey has done the same.

Neither decision has ended debate over the issue of a constitutional right to obtain an abortion. Indeed, in this case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives. This Court's inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise "raw