Stare Decisis and Zombie Laws

(Excerpt) In recent years, the Supreme Court has shown little interest in stare decisis—the principle that courts should honor precedent—as an animating value in constitutional interpretation. This has put many fundamental rights in a vulnerable posture. This Essay focuses on one underappreciated dimension of the decline in respect for stare decisis as it relates to fundamental rights: the relationship between stare decisis and what I will call, and what others have called, “zombie laws.” Zombie laws are laws that were rendered inoperative by courts but never rescinded; for example, an abortion ban that became unenforceable after Roe v. Wade. Such a law may have been held unconstitutional, but it was never taken out of the statute books. As a result, if that original court ruling gets overturned, it raises the potential that a zombie law will be brought back to life.