Con Law Center Articles and Publications

Document Type

Article

Publication Date

2020

Abstract

Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly, undermining their trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court. It is a bulwark against wholesale jurisprudential reversals. But, in recent years, the stare decisis doctrine has come under threat.

With little public or scholarly notice, the Supreme Court has radically weakened stare decisis in two ways. First, the Court has reversed its long-standing view that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. Recent decisions instead claim that “poor reasoning” in a prior decision justifies overruling cases. Second, the Court has discredited older precedents. The Court has claimed such older decisions have less weight because they may have violated individual rights during their life span.

The radical weakening of stare decisis presents a grave threat to legal stability. Justices can always find reasoning they believe is “poor” in prior decisions, which they can also claim have long violated citizens’ rights. Under this formulation, stare decisis provides little restraint against changing course. It also opens the door to “wave theories” of stare decisis, whereby new Justices seeking rapid change can claim fidelity to a weak version of stare decisis early in their careers, only to suggest a stronger version later to protect their own decisions. This weakening of stare decisis has deep analytical flaws that would allow perpetual changes to legal doctrine based simply on the current Justices’ preferences. The Court must not accept the alarming effects this movement would have on legal stability, doctrinal consistency, and judicial legitimacy.

Publication Title

William & Mary Law Review

Volume

62

First Page

83

Last Page

142

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