I think this is right, and more importantly, I think it tend to match how the Justices think of stare decisis.
I take it that's why the Court in Dobbs went out of its way to say it's a different picture with Obergefell and other cases. A lot of commentators figured Obergefell must be next because the reasoning of Dobbs is inconsistent with the reasoning of Obergefell on the merits of whether the right should, as a first matter, exist. My sense is that the Court went out of its way to emphasize that Obergefell is different because the Justices see the "retail" stare decisis implications as very different.
It’s hard to understand when consequences do or don’t matter to SCOTUS. In Dobbs, Alito said the court shouldn’t be influenced by the consequences of their decisions. In other cases, they seem very concerned about consequences (e.g., Trump immunity).
The problem is that unlike narrowing or partial overruling, retail stare decisis depends on the identity of one of the parties. “Precedent for me but not for thee” is no way to run a railroad.
I think this is right, and more importantly, I think it tend to match how the Justices think of stare decisis.
I take it that's why the Court in Dobbs went out of its way to say it's a different picture with Obergefell and other cases. A lot of commentators figured Obergefell must be next because the reasoning of Dobbs is inconsistent with the reasoning of Obergefell on the merits of whether the right should, as a first matter, exist. My sense is that the Court went out of its way to emphasize that Obergefell is different because the Justices see the "retail" stare decisis implications as very different.
It’s hard to understand when consequences do or don’t matter to SCOTUS. In Dobbs, Alito said the court shouldn’t be influenced by the consequences of their decisions. In other cases, they seem very concerned about consequences (e.g., Trump immunity).
The problem is that unlike narrowing or partial overruling, retail stare decisis depends on the identity of one of the parties. “Precedent for me but not for thee” is no way to run a railroad.
Presumably these sorts of decisions would be limited to existing agencies. Creating new independent agencies would be forbidden.