"At each turning point, the justices argued, the Court had to resolve an “intensely divisive controversy” in such a way as to call “the contending sides of a national controversy to end their national division.” Again constructing a monumental history, the justices announced “The court is not asked to do this very often.” In these rare moments the Court has to stand firm; it has to defend a previously made “water shed decision” lest the Court’s own legitimacy be jeopardized. Here the Court writes a history that goes beyond a history of legal doctrine; it is a history that takes into account the social and political world in which it is portrayed as playing a decisive role. Adhering to precedent in such circumstances gives testimony to the power of principles to guide the nation. By imagining the possibility of departing from precedent, by treating precedent as a standard, not a rule, the justices are able rhetorically both to elevate the stakes in its present decision and marshal a narrative of the past to serve as a springboard for an explanation of why it is both wise and prudent to adhere to a decision about whose substantive judgment they had earlier expressed doubt. In the history that “Casey” tells, the Court faced a severe challenge; adhering to precedent presented the best, though not only, answer."
January 1, 1970