Stare decisis *after* Roe and Obergefell, ACA etc. are overturned

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.

First of all, stare decisis is a principle not a hard-and-fast rule. It’s part of the umbrella of common law which places judicial consensus as the highest form of law. Stare decisis is as important as judges think it is.

Second of all, in case it wasn’t obvious, packing the court is a political move designed to get a political outcome. Part of the reason most people wouldn’t think it would be justifiable unless the court had already descended into a political entity rather than a just arbiter of the law.

Nothing would change. Cases would be decided based on precedent unless a majority of justices wanted to distinguish or overturn precedent. Outcomes would be different because the political orientations of the Court, on balance, shifted, not because putting more people on it somehow fundamentally changed how it works.

Precedents were overturned in the past too. Eventually, if not challenged long enough, they become new longstanding precedents.

Presumably adding justices to the court would happen along with new laws that work around the decisions that were overturned. Like, if the ACA really is deemed unconstitutional because of the dumb challenge that says that a $0 tax isn’t a tax and the law isn’t severable because whatever, then the new Congress would pass a new ACA that explicitly set the tax to a nonzero amount and explicitly stated that the tax part was severable, and then also add justices to make sure that the court wouldn’t just find some new pretense to accomplish the political goal of overturning the law.

So in this case, the precedent wouldn’t be directly challenged. A $0 tax is meaningless, and a non-severable law with such a provision has to be thrown out in its entirety. But it wouldn’t matter, because neo-ACA would have a non-zero tax that was explicitly severable. A future challenge to the law would require a new argument that would bypass the existing precedent.

Underlining mine.

The fault in your hypotheitcal is where I underlined. We already have, or will have once Barrett is confirmed, a packed court. It’s just packed the other way.

Separately …

As others have said, stare decisis means a/the court should not go a different way than precedent unless they have a darn good reason as Steve Martin used to say. Or unless they see truly different circumstances where an existing ruling needs to be more finely subdivided to account for current circumstances.

Lastly …
If the OP’s example rulings are overturned in violation of current stare decisis, a good argument can be made that overturning the overturning and thereby returning to the current status quo is itself a more true form of stare decisis.

It’s turtles all the way down, once the court is deciding on non-legal grounds and simply seeking fig-leaf quality justifications.

If you study Supreme Court decisions, you soon realize that the entire 20th century was spent reversing earlier decisions of the Supreme Court, some after only a few years. Stare decisis is not as set in stone as you think it is.

Part of the reasoning for overturning the new cases might be that they failed to give sufficient weight to the long-standing precedents.

As someone above didn’t quite say, it’s McTurtles all the way down. Once the court overturns Roe, Obergefell, ACA, Medicare, etc., it will have destroyed the doctrine, along with the idea that the court just calls balls and strikes.

Well, both sides have decisions they want overturned, and ones they want to stand. Stare decisis has a place, but it’s always only going to be one factor. And the Supreme Court has never been just about calling balls and strikes. That’s a transparent fiction. Sometimes it’s about who has the best reasoning, but the cases that the Court has to take almost always have a policy-setting component.

If Roe and Obergefell are overturned than lots of decisions are at risk of being overturned. Including ones which the American right loves.

For instance Heller. Which contains all of Roe‘s defects in reasoning.

Really? There were a few examples, but on the whole SCOTUS in like other common law countries Supreme Courts has been loath to overrule previous decisions.

For one major example, the entire agenda of the progressive movement had been declared unconstitutional by the Court only to turn around and allow it piecemeal as the culture changed in favor of it. Cultural change provoked endless reversals from backing down on child labor when pressure for a constitutional amendment banning it grew, to the change on what it thought of the New Deal when the threat of court packing loomed to the huge reversals of the 50s and 60s on civil rights, contraception, abortion, and censorship.

I’d go so far as to argue that every right we take for granted today was once considered illegal by an early Court and reversed by a later one. That’s hyperbole to an extent, but I stand by the claim that any reading of the history of the Court over the 20th century shows a constant reversal of older attitudes in the face of the new.

Why else do you think that conservatives demand the pseudoscience of originalism to get back to the days when the things they hate were legally banned? They want a seemingly legitimate way to outlaw modern culture, no mater that it has no relationship to the real history of the country.