I just came across a nice, and nicely problematical, statement of the regard one should have for precedent in Sandra Day O’Connor’s dissent in City of Boerne v. Flores:
Stare decisis concerns should not prevent us from revisiting our holding in Smith. " `[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.’" [citations omitted] This principle is particularly true in constitutional cases, where--as this case so plainly illustrates--correction through legislative action is practically impossible." [citation omitted] I believe that, in light of both our precedent and our Nation’s tradition of religious liberty, Smith is demonstrably wrong. Moreover, it is a recent decision. As such, it has not engendered the kind of reliance on its continued application that would militate against overruling it. Cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 855 -856 (1992).
Aside from the ad hoc defense of Roe, O’Connor puts precedent in its place. When important doctrinal or constitutional matters supervene, precedent should give way. The fact that the precedent is long-standing (think Plessy v. Ferguson, much older in 1954 than Roe is now) pales in the face of these other considerations.
I wonder if someone who uttered all but the last two sentences of that opinion could win any support in the left wing of the Democratic Party.