Suppose that the Supreme Court - either 6-3 after Barrett is confirmed, or even 7-2 if Breyer pass on - does what progressives have feared and overturns Roe, Obergefell, the ACA and a wide host of other prior liberal rulings.
The response of many progressives has been “In that case, we need to pack the Court.” Okay, let’s say that happens - the Court gets packed.
But how would stare decisis play out then? Presumably, the purpose of this packed Court would be to reverse the rulings of the un-packed Court did and bring Roe, Obergefell, ACE back again. But under the doctrine of stare decisis, which Court decision prevails? Because either way, you are overturning a precedent. The unpacked Court that just threw out Roe, Obergefell, ACE, etc. was setting a precedent when it did so, and now the new court is overturning its precedent.
Then wouldn’t the new packed Court essentially be saying, from this point on, we’re throwing stare decisis out the window, we’re enacting rulings on the basis of what we want?
I don’t mean this as a gotcha, but rather out of genuine curiosity. This is the only conclusion I can see: If a packed Court reverses what the unpacked Court did, then it is upheaving stare decisis - even if, the unpacked Court itself was upheaving stare decisis by throwing out Roe, Obergefell and ACA.