Under orthodox principles of stare decisis, the case for reversing Roe v. Wade and Planned Parenthood v. Casey was at least as strong as the case for reversing Plessy v. Ferguson, assuming that Roe and Casey were wrongly decided. That is, of course, a big assumption, and in my view, an incorrect one. But if Roe and Casey were rightly decided, then those decisions should have been reaffirmed on the merits. Stare decisis comes into play only if those decisions were incorrect, and Brown v. Board of Education is a powerful precedent in the majority’s favor on that assumption.
All of the dissent’s attempts to distinguish Brown on this question are unpersuasive. This is not because the two cases are indistinguishable. It is because the only persuasive distinction between them with respect to stare decisis rests on conclusions of political morality that the dissenters and other critics of Dobbs have been reluctant to invoke explicitly. I explain further in a new essay called “Dobbs v. Brown.”