Will’s post on Hernandez v. Mesa highlights the latest offensive in the Supreme Court’s assault on doctrine. Over the last few years, in a number of cases, several conservative Justices have expressed their willingness to overrule prior decisions that established legal doctrine. Although their reasoning has varied depending on the case, the basic argument has been that various doctrines should be abolished because they were created by judges—which is, definitionally, true—and these doctrines are not sufficiently grounded in the constitution.

To be clear, the phenomenon I’m talking about is different than Justices expressing a willingness to overrule prior decisions generally. All Justices are open to overruling existing precedent some of the time, and the Court frequently does. And as Will points out in his new article, Precedent and Discretion, the best evidence suggests that the Roberts court has actually overruled precedent less often than the Rehnquist, Burger, or Warren Courts. What I’m talking about is Justices being specifically open to striking down “judge-crafted” law specifically because it was judge-crafted. For instance, one particularly on-point example is Justice Thomas’ concurrence last year in Gamble v. United States calling to revisit the doctrine of stare decisis itself.

When the court strikes down doctrine, it is striking down legal frameworks that help govern society. This is not to say that all doctrines are good or worth preserving, but judicial rules that have developed over time frequently serve important functions. For instance, in Hernandez v. Mesa, the doctrine being questioned is the legality of allowing Bivens actions, but Bivens created a pathway to check constitutional violations of federal officers.

Importantly, this assault on doctrine is occurring at the same time two other trends that limit our political institutions’ ability to govern: gridlock and preemption. The first trend—gridlock—is straightforward. Anyone that’s paid even the slightest attention to Congress knows that it increasingly has difficulty passing legislation to deal with anything more complicated than naming post offices, let alone pressing national problems like immigration reform or regulation of the tech sector. The second trend—preemption—is that federal laws have limited state and municipal governments’ ability to regulate a wide range of issues.

When taken together, these trends mean that, in many cases, the Supreme Court is rolling back legal rules that address significant issues without a realistic possibility that these rules will be recreated by national, state, or local laws. This problem is particularly acute in cases, like Will identified, where the doctrine was initially created to override other laws or authority in the first place.