Stare decisis
Stare decisis, Latin for to stand by things decided, [the full Latin phrase is stare decisis et non quieta movere — stand by the thing decided and do not disturb the calm] is a judicial doctrine under which a court follows the principles, rules, or standards of its prior decisions (or decisions of higher tribunals) when deciding a case with arguably similar facts. A court following a prior decision because it was correctly decided is not adhering to stare decisis; it is merely reaffirming precedent.
In 2020, three Supreme Court justices appointed by Trump refused to support his claims of election fraud. The president-elect also lost several cases during his first term, in particular when he tried to roll back the Dreamer program, which protects young immigrants from deportation (while six Supreme Court justices granted Trump immunity from prosecution on a number of charges in 2024 ).
The U.S. Supreme Court's adherence to stare decisis — the legal principle of respecting precedent — has been notably flexible in recent years, particularly in high-profile cases. The Court has changed significantly over the past decade ago, and the current bench is far more inclined to actually overrule past precedent rather than extending it. This trend has sparked concern about the Court's commitment to precedent and its implications for legal stability.
Dobbs v. Jackson Women's Health Organization (2022): In this landmark decision, the Court overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which had established and reaffirmed the constitutional right to abortion. The majority opinion, authored by Justice Samuel Alito, argued that Roe was "egregiously wrong from the start" and that its reasoning was "exceptionally weak." The decision emphasized that stare decisis is not an "inexorable command" and can be set aside when a prior ruling is deemed incorrect.
Loper Bright Enterprises v. Raimondo (2024): The Court overturned the Chevron doctrine, a precedent that had guided judicial deference to federal agency interpretations of ambiguous statutes for nearly 40 years. Chief Justice John Roberts, writing for the majority, stated that Chevron deference conflicted with the Administrative Procedure Act, asserting that "under the APA, it thus remains the responsibility of the court to decide whether the law means what the agency says."
These decisions illustrate the Court's willingness to overturn longstanding precedents, especially when a majority believes that a prior decision was fundamentally flawed. While the doctrine of stare decisis promotes legal stability and predictability, the Court has maintained that it is not an absolute rule. Justice Clarence Thomas, for instance, has expressed that the Court should not follow erroneous precedent, emphasizing that "stare decisis is only an 'adjunct' of our duty as judges to decide by our best lights what the Constitution means."
Critics argue that frequent overruling of precedent can undermine the Court's legitimacy and the public's trust in the judicial system. For example, the overturning of Roe v. Wade marked one of the few times the Court rescinded a right previously recognized, leading to debates about the evolving view of precedent.
Black’s Law Dictionary (10th ed. 2014) (defining stare decisis as the doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation); Precedent, Black’s Law Dictionary (10th ed. 2014) (defining precedent as a decided case that furnishes a basis for determining later cases involving similar facts or issues).
The doctrine of stare decisis has horizontal and vertical aspects. A court adhering to the principle of horizontal stare decisis will follow its own prior decisions absent exceptional circumstances (e.g., the Supreme Court follows a precedent unless it has become too difficult for lower courts to apply). Black’s Law Dictionary (10th ed. 2014) defined horizontal stare decisis as the doctrine that a court . . . must adhere to its own prior decisions, unless it finds compelling reasons to overrule itself. By contrast, vertical stare decisis binds lower courts to follow strictly the decisions of higher courts within the same jurisdiction (e.g., a federal court of appeals must follow the decisions of the U.S. Supreme Court, the federal court of last resort). Black’s Law Dictionary (10th ed. 2014) defined vertical stare decisis as the doctrine that a court must strictly follow the decisions handed down by higher courts within the same jurisdiction.
The doctrine of stare decisis in American jurisprudence has its roots in eighteenth-century English common law. In 1765, the English jurist William Blackstone described the doctrine of English common law precedent as establishing a strong presumption that judges, to promote stability in the law, would abide by former precedents, where the same points come again in litigation unless such precedents were flatly absurd or unjust. William Blackstone Commentaries on the Laws of England 69–70 described precedent as a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments.
At least some of the Constitution’s Framers favored judges’ adherence to judicial precedent because it limited judges’ discretion to interpret ambiguously worded provisions of law. For example, writing in the Federalist No. 78 during the debates over adoption of the Constitution in an essay addressing concerns about judicial power, Alexander Hamilton argued that courts should apply precedent to prevent judges from having unbounded discretion to interpret ambiguous legal texts.
Federalist No. 78, at 439 (Clinton Rossiter ed., 1999) (To avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them . . . .). Historical sources provide only limited insight into the Founders’ views on stare decisis, and it is unclear whether Alexander Hamilton was referring to the presumption that a court should adhere to its own prior decisions or, rather, those of higher tribunals. Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 664 (1999). Other Founders held similar views on the benefits of precedent. See, e.g., 1 Diary and Autobiography of John Adams 167–68 (L.H. Butterfield, ed., 1961) (draft of Nov. 5, 1760) ([E]very possible Case being thus preserved in Writing, and settled in a Precedent, leaves nothing, or but little to the arbitrary Will or uninformed Reason of Prince or Judge.). See also Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 9 (2001) ([C]oncern about such discretion was a common theme throughout the antebellum period; in one form or another, it shaped most antebellum explanations of the need for stare decisis.). But see Letter from James Madison to C.E. Haynes (Feb. 25, 1831), reprinted in 9 The Writings of James Madison 443 (Gaillard Hunt ed., 1910) (That cases may occur which transcend all authority of precedents must be admitted, but they form exceptions which will speak for themselves and must justify themselves.).
During Chief Justice John Marshall’s tenure in the early 1800s, the newly created Supreme Court combined a strong preference for adhering to precedent with a limited notion of error correction when precedents had been eroded by subsequent decisions or were premised on an incomplete factual record. The early Court was reluctant to overrule prior decisions when doing so would upset commercial reliance interests (e.g., precedents concerning matters of property or contract law). See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819) ([A]n exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.).
In the modern era, the Supreme Court applied the doctrine of stare decisis by following the rules of its prior decisions unless there is a special justification — or, at least, strong grounds — to overrule precedent. This justification must amount to more than a disagreement with a prior decision’s reasoning. In adopting this approach, the Court has rejected a strict view of stare decisis that would require it to adhere to its prior decisions regardless of those decisions’ merits or the practical implications of retaining or discarding precedent. Instead, while the Court has stated that its precedents are entitled to respect and deference, the Court considers the principle of stare decisis to be a discretionary principle of policy to be weighed and balanced along with the Court’s views about a prior decision’s merits, along with several pragmatic considerations, when determining whether to retain precedent in interpreting the Constitution or deciding whether to hear a case.
Michael J. Gerhardt, The Role of Precedent in Constitutional Decisionmaking and Theory, 60 Geo. Wash. L. Rev. 68, 73, 134–35 (1991) [hereinafter Gerhardt, The Role of Precedent] (describing the Court’s review of its precedents as a process in which the Justices individually try to balance their respective views on how the Constitution should be interpreted and certain social or institutional values such as the need for stability and consistency in constitutional law). Sometimes a Justice’s judicial philosophy may conflict with precedent, potentially requiring a Justice to choose between following his or her philosophy, or making a pragmatic exception to it in order to maintain stability in the law. For example, some proponents of textualism and original meaning as methods of constitutional interpretation object to the use of judicial precedent that conflicts with the Constitution’s text and its original meaning. In their view, this approach to precedent favors the Supreme Court’s views over the views of those who ratified the Constitution, thereby allowing mistaken constitutional interpretations to persist. See Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 769–70 (1988). Nevertheless, textualists and originalists may adhere to precedent for pragmatic reasons, such as when doing so would promote stability in the law. For example, Justice Antonin Scalia, a textualist and originalist, followed long-standing precedent allowing for the Supreme Court to incorporate rights specifically enumerated in the Bill of Rights against state governments, even though he harbored significant doubts that such incorporation comported with the Constitution’s original meaning. See, e.g., McDonald v. City of Chicago, 561 U.S. 742, 791 (2010) (Scalia, J., concurring) (Despite my misgivings about substantive due process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights ‘because it is both long established and narrowly limited.’ (citing Albright v. Oliver, 510 U.S. 266, 275 (1994) (Scalia, J., concurring)).
Citizens United, 558 U.S. at 378 (Roberts, C.J., concurring) (Stare decisis is . . . a ‘principle of policy.’ When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right. (citing Helvering v. Hallock, 309 U.S. 106, 119 (1940))); Payne v. Tennessee, 501 U.S. 808, 828 (1991) (Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision.’ (citation omitted)); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405–06 (1932) (Brandeis, J., dissenting) "The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided. Stare decisis is usually the wise policy, because, in most matters it is more important that the applicable rule of law be settled than that it be settled right."
Notably, the Court may avoid having to decide whether to overrule precedent if it can distinguish the law or facts of a prior decision from the case before it, or limit the prior decision’s holding so it is inapplicable to the instant case. The Justices have latitude in how broadly or narrowly they construe their prior decisions. See Gerhardt, The Role of Precedent, supra note 7, at 98 (The Supreme Court can overturn or otherwise weaken precedents through explicit overrulings, overrulings sub silentio, or subsequent decisionmaking that narrows or distinguishes precedents to the point of practical nullification.). For more on the use of judicial precedent as a method of constitutional interpretation, see Intro.8.4 Judicial Precedent and Constitutional Interpretation. The Court has other means of avoiding a decision on whether to overrule precedent, which include the Court’s discretionary jurisdiction to deny certiorari, the four votes required to grant certiorari, and the Court’s rule generally limiting review to the questions presented or fairly included in the petition. Amy Coney Barrett, Symposium, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711, 1731–33 (2013).
The Supreme Court established special rules for applying stare decisis in constitutional cases. During the twentieth century, the Court adopted a weaker form of stare decisis when deciding cases that implicated a prior constitutional interpretation, rather than a previous interpretation of a federal statute. One study determined that the notion that the constitutional or statutory nature of a precedent affects its susceptibility to reversal was largely rejected in the founding era and did not gain majority support until well into the twentieth century. The Supreme Court’s belief in Congress’s ability to correct the Court’s errors through legislation has sometimes motivated the Court to retain precedent in cases in which Congress could enact corrective legislation. These cases encompass some disputes that implicate questions of tribal sovereign immunity, judicially created causes of action, or constraints on state action under the Commerce Clause. See South Dakota v. Wayfair, Inc., No. 17-494, slip op. at 2 (2018) (Roberts, C.J., dissenting) (The bar [for departing from stare decisis and overturning precedent] is even higher in fields in which Congress ‘exercises primary authority’ and can, if it wishes, override this Court’s decisions with contrary legislation.
The Court has sought to justify this approach on the grounds that Congress may amend federal laws to address what it deems to be erroneous judicial statutory interpretations, whereas amending the Constitution to overturn a Supreme Court precedent is much more difficult.10 In fact, in the history of the United States, only five Supreme Court precedents have been overturned through constitutional amendment.
These former precedents are Oregon v. Mitchell, 400 U.S. 112, 117–18 (1970) (holding that Congress could not establish a voting age of eighteen for state and local elections, but could do so for national elections), superseded by constitutional amendment, U.S. Const. amend. XXVI (The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.); Pollock v. Farmers’ Loan & Trust Co., 158 U.S. 601, 637 (1895) (holding that a federal income tax violated the Constitution because it was not apportioned among the states based on congressional representation), superseded by constitutional amendment, U.S. Const. amend. XVI (The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.); Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178 (1874) (upholding as constitutional a state law that limited the right of suffrage to men), superseded by constitutional amendment, U.S. Const. amend. XIX (The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.); Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 452–54 (1857) (holding that former slaves lacked standing to sue in federal court because they were not citizens, and that the federal government lacked the authority to regulate slavery in the territories), superseded by constitutional amendment, U.S. Const. amends. XIII (Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.), and XIV (All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.); Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 452 (1793) (holding that federal courts had jurisdiction over civil suits by private citizens against states) superseded by constitutional amendment, U.S. Const. amend. XI (The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or Subjects of any Foreign state.).
Despite the Court’s assertion that it applies a weaker form of stare decisis in constitutional cases, the Court still requires a special justification or at least strong grounds for overruling constitutional precedents.
|
NEWSLETTER
|
| Join the GlobalSecurity.org mailing list |
|
|
|
