ArtIII.S2.C1.3.2.8 Stare Decisis in Constitutional Law

Article III, Section 2, Clause 1:

The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Adherence to precedent ordinarily limits and shapes the approach of courts to decision of a presented question. "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 . . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function." 1 Stare decisis is a principle of policy, not a mechanical formula of adherence to the latest decision "however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience." 2 The limitation of stare decisis seems to have been progressively weakened since the Court proceeded to correct "a century of error" in Pollock v. Farmers' Loan & Trust Co.3 Since then, more than 200 decisions have been overturned, 4 and the merits of stare decisis seem more often celebrated in dissents than in majority opinions. 5 Of lesser formal effect than outright overruling but with roughly the same result is a Court practice of "distinguishing" precedents, which often leads to an overturning of the principle enunciated in a case while leaving the actual case more or less alive. 6

Footnotes

  1.  Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408 (1932) (Justice Brandeis dissenting). For recent arguments with respect to overruling or not overruling previous decisions, see the self-consciously elaborate opinion for a plurality in Planned Parenthood v. Casey, 505 U.S. 833, 854-69 (1992) (Justices O’Connor, Kennedy, and Souter) (acknowledging that as an original matter they would not have decided Roe v. Wade, 410 U.S. 113 (1973), as the Court did and that they might consider it wrongly decided, but nonetheless applying the principles of stare decisis – they stressed the workability of the case's holding, the fact that no other line of precedent had undermined Roe, the vitality of that case's factual underpinnings, the reliance on the precedent in society, and the effect upon the Court's legitimacy of maintaining or overruling the case). See id. at 953-66 (Chief Justice Rehnquist concurring in part and dissenting in part), 993-1001 (Justice Scalia concurring in part and dissenting in part). See also Payne v. Tennessee, 501 U.S. 808, 827-30 (1991) (suggesting, inter alia, that reliance is relevant in contract and property cases), and id. at 835, 842-44 (Justice Souter concurring), 844, 848-56 (Justice Marshall dissenting).
  2.  Helvering v. Hallock, 309 U.S. 106, 110 (1940) (Justice Frankfurter for Court). See also Coleman v. Alabama, 399 U.S. 1, 22 (1970) (Chief Justice Burger dissenting). But see id. at 19 (Justice Harlan concurring in part and dissenting in part); Williams v. Florida, 399 U.S. 78, 117-119 (1970) (Justice Harlan concurring in part and dissenting in part). Recent discussions of and both applications of and refusals to apply stare decisis may be found in Hohn v. United States, 524 U.S. 236, 251-52 (1998), and id. at 260-63 (Justice Scalia dissenting); State Oil Co. v. Khan, 522 U.S. 3, 20-2 (1997); Agostini v. Felton, 521 U.S. 203, 235-36 (1997), and id. at 523-54 (Justice Souter dissenting); United States v. IBM Corp., 517 U.S. 843, 854-56 (1996) (noting principles of following precedent and declining to consider overturning an old precedent when parties have not advanced arguments on the point), with which compare id. at 863 (Justice Kennedy dissenting) (arguing that the United States had presented the point and that the old case ought to be overturned); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (plurality opinion) (discussing stare decisis , citing past instances of overrulings, and overruling 1990 decision), with which compare the dissents, id. at 242, 264, 271; Seminole Tribe of Florida v. Florida, 517 U.S. 44, 61-73 (1996) (discussing policy of stare decisis , why it should not be followed with respect to a 1989 decision, and overruling that precedent), with which compare the dissents, id. at 76, 100. Justices Scalia and Thomas have argued for various departures from precedent. E.g., Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 200-01 (1995) (Justice Scalia concurring) (negative commerce jurisprudence); Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604, 631 (1996) (Justice Thomas concurring in part and dissenting in part) (rejecting framework of Buckley v. Valeo and calling for overruling of part of case). Compare id. at 626 (Court notes those issues not raised or argued).
  3.  157 U.S. 429, 574-579 (1895).
  4.  See Appendix. The list encompasses both constitutional and statutory interpretation decisions. The Court adheres, at least formally, to the principle that stare decisis is a stricter rule for statutory interpretation, Patterson v. McLean Credit Union, 491 U.S. 164, 171-175 (1989), at least in part since Congress may much more easily revise those decisions, but compare id. at 175 n.1, with id. at 190-205 (Justice Brennan concurring in the judgment in part and dissenting in part). See also Flood v. Kuhn, 407 U.S. 258 (1972).
  5.  E.g., United States v. Rabinowitz, 339 U.S. 56, 86 (1950) (Justice Frankfurter dissenting); Baker v. Carr, 369 U.S. 186, 339-340 (1962) (Justice Harlan dissenting); Gray v. Sanders, 372 U.S. 368, 383 (1963) (Justice Harlan dissenting). But see Green v. United States, 356 U.S. 165, 195 (1958) (Justice Black dissenting). Compare Justice Harlan's views in Mapp v. Ohio, 367 U.S. 643 (1961) (dissenting), with Glidden Co. v. Zdanok, 370 U.S. 530 (1962) (opinion of the Court).
  6.  Note that, in Planned Parenthood v. Casey, 505 U.S. 833 (1992), while the Court purported to uphold and retain the "central meaning" of Roe v. Wade, it overruled several aspects of that case's requirements. See also, e.g., the Court's treatment of Pope v. Williams, 193 U.S. 621 (1904), in Dunn v. Blumstein, 405 U.S. 330, 337, n.7 (1972). See also id. at 361 (Justice Blackmun concurring.)