On the latest episode of the WI Law in Action podcast from the UW Law Library, host Kris Turner interviews Nina Varsava, Assistant Professor of Law at the University of Wisconsin Law School and scholar on procedure, courts, judicial administration, ethics, and jurisprudence. She is especially interested in precedent, interpretation, and inter-systemic adjudication. In this episode, she discusses her recent article, “Precedent, Reliance, and Dobbs”.which is forthcoming in the Harvard Law Review.
Varsava on the importance of the protection reliance interest as an essential feature of stare decisis:
One of the reasons for having a system of stare decisis in the first place is so that people can form reliable expectations about their future legal rights and duties. When people conform to such expectations, they can more confidently and clearly imagine their futures, form understandings about their place in society, and make and execute plans…
So then when a court overrules a case that people have relied on, it can cause not only surprise, but unfair surprise. And is unfair because the court itself encouraged people to form expectations and then acted in a way that thwarted those expectations. So it makes sense that when a court like the US Supreme Court deliberates about whether to overrule some precedent, it would consider whether there is reliance at stake, and how much weight that reliance puts on the Court as a pressure against overruling. So upsetting reliance interests is a relevant harm for the Court to consider, which would weigh against overruling, although it might not be dispositive. Sometimes there are very strong factors weighing in favor of overruling as well.
Varsava on tangible reliance in the Dobbs opinion:
The Dobbs majority insists that only so-called tangible reliance counts for stare decisis purposes. Tangible reliance on a decision means that people took concrete action based on that decision that they would not have taken otherwise. And if the decision is overruled, they would be worse off in a material way than they would’ve been had the decision never existed at all.
Even commentators who take the narrowest view of reliance interests acknowledge that people who were already pregnant at the time of the Dobbs decision might have legitimate reliance interests at stake. And the idea is that at the time these in individuals engaged in the conduct that led to the pregnancy, they had the belief that they would have access to abortion in the event that they unintentionally became pregnant or intentionally became pregnant, but with expectation that if a complication arose in the pregnancy, that made the pregnancy unfeasible or undesirable to continue, then they could terminate it. Now if they did not have that belief, then they might have made different decisions.
So, what about other ways that people might have relied on the right to abortion in a tangible sense? I think we can come up with all kinds of plausible ways in which people might have tangibly relied. For example, people have moved to the US with the expectation that they would have the benefit of access to abortion… Individuals might have done so in directing their political activity and voting behavior.
Varsava on intangible reliance in the Dobbs opinion:
The Dobbs majority acknowledges that there may be other types of reliance on the precedents protecting a right to abortion, aside from the tangible kind that we just discussed. But the majority insists that this other reliance is not relevant for stare decisis purposes. And the majority gives two main reasons for excluding so-called intangible reliance. It says, one, that the Court hasn’t considered that type of reliance in other cases, aside from Casey, which it views as anomalous. And two, that the Court is not well equipped to assess or measure that kind of reliance, so it should just refrain from considering it at all…
Now, the Casey joint opinion, where this reliance analysis comes from, put weight on that reliance, but it didn’t unpack it. And as I hope my article makes clear, it’s actually a difficult and complicated issue, exactly what this intangible reliance is… [Casey] named this reliance as mattering, it called it societal reliance, but it didn’t explain exactly what it meant. And so the Dobbs majority says that Casey was just wrong, and that the Court hasn’t invoked that kind of reliance in other cases, which I think is incorrect.
Varsava on intangible reliance in other Supreme Court opinions:
The Court has put weight on intangible reliance interest, not just in Casey, but in various other cases. I discuss several of them in the paper. A salient example is the case of Dickerson versus United States, where the Court considered the precedential status of Miranda v Arizona. And Miranda established the well-known rule that criminal suspects have a constitutional right to receive a warning about the right to remain silent among other things. In Dickerson, the Court considered overruling Miranda, but ultimately decided not to. And one factor it took to weigh heavily against overruling was the widespread societal reliance on the Miranda rule. That reliance couldn’t conceivably be thought of as tangible, I think, and the Court didn’t try to construe it that way, but nevertheless, the reliance at state counted for the Court, and significantly in the Court stare decisis analysis.
Varsava on the value of intangible reliance:
Even when reliance on precedent is purely intangible, upsetting that reliance can undermine people’s autonomy and offend their dignity. And I argue that courts have a responsibility to recognize and mitigate these harms. Many people have formed their beliefs, attitudes, and intentions around the expectation that abortion would be protected nationwide. And thwarting the expectation that those beliefs, intentions and so on are based on, constitutes a harm, even if we can’t pinpoint any tangible reliance….
To return to Dobbs, with the overruling of Roe, the Court forces us to abandon intentions, to change our attitudes, and to reimagine our identities and positions in society. Our careers, relationships, and lives are suddenly not what we thought that they would be based on what the Court had previously determined and publicly declared. And the effect is destabilizing and disorienting, undermining our autonomy and setting back our self-determination, because we’re unable to carry out the lives that we had imagined for ourselves.
Varsava on the impact of the Dobbs decision on the doctrine of precedent:
So, Dobbs may have overruled Casey not only on the most obvious matter of abortion, but also on the matter of stare decisis itself, and that’s something that I want to draw attention to with this article. Casey’s probably the most well-known case about the doctrine of precedent. So, in that sense it is or was a precedent about precedent. In Casey, the Court articulated a set of factors meant to guide its analysis of whether to overrule Roe. Reliance interest was an important one of these factors. And these factors have been taken to be transsubstantive, meaning that they apply not just to precedent in a specific area, not just to abortion precedents, but to precedents concerning any area of law. So, it’s unclear whether the Court will now treat Dobbs as the prevailing precedent on precedent, but it would not be surprising if it did, especially given the animosity we see from the Justices and the majority in Dobbs towards Casey’s approach to precedent.
For more of Professor Varsava’s scholarship, see her profiles on SSRN and the UW Law School Digital Repository.