In 2008, in Justice Antonin Scalia’s majority opinion in District of Columbia v. Heller, which acknowledged a person proper to personal weapons beneath the Second Modification, he discounted the main precedent by specializing in its litigation historical past.

The defendants “made no look within the case, neither submitting a quick nor showing at oral argument; the courtroom heard from nobody however the authorities (motive sufficient, one would suppose, to not make that case the start and the top of this courtroom’s consideration of the Second Modification),” wrote Justice Scalia, who died in 2016.

Professor Lazarus mentioned that it was one factor to have a look at the litigation historical past of a Supreme Court docket determination to know it higher and one other to present it roughly precedential weight relying on what the attorneys had or had not argued.

Chief Justice Roberts’s query about Roe was in a way irrelevant, as the importance of fetal viability had been totally argued in Planned Parenthood v. Casey, the 1992 determination that reaffirmed Roe’s core holding.

That made Roe a “super-duper precedent,” Senator Arlen Specter of Pennsylvania mentioned at Chief Justice Roberts’s affirmation hearings. The chief justice didn’t undertake Mr. Specter’s terminology, however he didn’t quarrel with the senator’s bigger level.

“The Casey determination itself, which utilized the ideas of stare decisis to Roe v. Wade, is itself a precedent of the courtroom, entitled to respect beneath ideas of stare decisis,” Chief Justice Roberts mentioned, including: “That’s itself a precedent. It’s a precedent on whether or not or to not revisit the Roe v. Wade precedent.”

Professor Lazarus mentioned the courtroom’s current method to precedent pointed in a special route.

“Stare decisis, even for a case that has been known as super-precedent, is on the wane on the courtroom,” he mentioned. “And advocacy historical past performs a job.”