Stare decisis- the doctrine that says that courts should follow precedent- is one of the most misunderstood and underappreciated concepts in the law. It gets attacked by the left and the right. My father, from the left, used to say “why should a case come out a certain way just because some English judge in the 18th Century said it should?”. On the right, you can see the stuff conservatives say about cases like Roe v. Wade: “why should we have to accept decisions that we think got the law wrong?”.
And while these sentiments have their force, the principle of stare decisis actually has a lot more force. First of all, you really couldn’t run the legal system without it. Let’s put aside the much more controversial US Supreme Court and just talk about a state supreme court dealing with state law questions. That court simply can’t take every case that comes up in the state. In a big state like California, there might be hundreds of thousands of lawsuits and criminal cases brought every year- the state Supreme Court, with 7 justices, just can’t decide every one of them. But what it can do is take a representative case, announce what the law is, and have that legal test govern all the other cases in the state. That is called “vertical stare decisis”. Higher courts’ decisions bind lower courts. It’s also not that controversial.
The more controversial issue is “horizontal stare decisis”, where a court’s earlier decisions bind itself. But even there, think about it. What would you rather have the California Supreme Court do? Decide cases that raise the same issue over and over again, coming out the same way, or deciding novel issues that have come up and where the California Supreme Court has not yet spoken? Obviously efficiency counsels it spend more time on the latter sort of case, and horizontal stare decisis allows the Court to do that by telling litigants “the stuff the Court has already decided is settled law, so don’t just take a bunch of cases raising the same issue to the Court”.
But even beyond judicial efficiency, there are other powerful reasons for horizontal stare decisis. For one thing, it allows courts to take advantage of the wisdom of crowds. Instead of a Justice just deciding what he or she thinks about an issue, or talking it over with colleagues, the Justice can also consult the holdings and reasoning of prior, very smart people who sat on the bench. Utilizing the wisdom of crowds in this way is going to result in better decisions, on average, than if the results and reasoning of earlier cases were ignored.
Additionally, however, stare decisis rules achieve a crucial goal of a legal system: stability. Think about this from a client’s perspective. You want to know if you are allowed to do something. So you go to your lawyer and ask. The lawyer says “there’s a California Supreme Court decision from 7 years ago that says that what you want to do is permitted under the statute”. That’s great news! You can rely on that!
But you can only rely on that if, in fact, the California Supreme Court has a policy of following its precedents. Fortunately for you it does. Without the doctrine of stare decisis, you might be stuck not knowing what the law is, or worrying it will change every time a new justice is appointed or a justice retires. Stare decisis thus contributes to the stability and reliability of the law, which allows people to get legal advice and live their lives in compliance with the law (or be on fair notice if they decide to break it).
Stare decisis is also, at least in the federal system, constitutionally required. Now granted, the Constitution does not in so many words say “there shall be stare decisis”. But in a couple of places, the Constitution confirms something that was said several times by the framers- that the US would be basing its legal system on the British common law system, which was a system of decisionmaking by precedent with strong stare decisis doctrines. You can see this most clearly in the Seventh Amendment, which specifically references the common law as the factor that determines if you have a right to a jury trial in a civil case. But it’s also in Article III, which grants the judicial power to the federal judiciary: “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.” See that language “in law and equity”? That refers to the two types of courts in the English court system- “law courts”, governed by common law rules subject to stare decisis, and “equity courts”, governed by the established procedures of the English Chancery. The Article III “judicial power” was the power to operate an English-style judiciary. The framers of the Constitution created a system of stare decisis. (This, by the way, is an inconvenient point for conservative originalists who want to overturn lots of precedents they don’t like.)
In addition, stare decisis is valuable for another reason: it’s a constraint on judges doing whatever they want. Conservatives and originalists talk a lot about the supposedly constraining function of their judicial philosophy, but it doesn’t work. For instance, in Bush v. Gore, the “originalists” adopted weird, radical interpretations of the Equal Protection Clause that they would not apply to any other case. Originalism didn’t stop them. Originalists also routinely disregard such things as the original understanding of the nondelegation doctrine, the original understanding of the 14th Amendment with respect to affirmative action programs, and the original understanding that the framers had that the cruel and unusual punishment clause of the Eighth Amendment would apply not only to punishments deemed cruel and unusual in 1791, but those punishments deemed cruel and unusual by modern sensibility. Originalism never constrains anyone who doesn’t want to be constrained.
But precedent does. We’ve seen over and over again- and even in the modern Supreme Court, despite its predilection for overruling precedents- that precedent can meaningfully constrain a judge from doing whatever it is he or she wants to do. For instance, in Dickerson v. United States, Chief Justice Rehnquist, who hated Miranda v. Arizona and its famous warnings, nonetheless upheld and extended the decision. He said that everyone in the criminal justice system was relying on it, and he was right. Or take Chief Justice Roberts, who doesn’t like abortion very much, dissented in a case called Whole Women’s Health that struck down abortion restrictions, but then concurred in June Medical, refusing to overturn the precedent he dissented from. That’s real constraint!
And that’s why a lot of conservatives don’t like precedent these days. It’s not because stare decisis isn’t embedded in our legal system, or that it doesn’t make the legal system function, or it wasn’t commanded by the founders. It’s because they control the courts now and don’t want to be constrained. You can see that in Justice Alito’s now infamous draft opinion overturning Roe v. Wade in the Dobbs case. He makes completely short shrift of precedent. Roe was wrong, he says, so why shouldn’t we overrule it?
That’s just wrong. Think of all the women in America who have ordered their lives around the availability of abortion if an accident occurs. It’s what allows them to date, to form sexual relationships and even to marry; it’s even what allows them, in a certain sense, to feel secure going to a bar with a guy and getting drunk. No matter what happens, she knows that abortion is a legal option for her. It has been for 50 years. Courts rely on it too, creating a body of precedent as to what a state can and cannot do to restrict abortion. Doctors and clinics rely on it, making investments, setting up their practices, and doing business with the public. And most importantly, the public expects the Supreme Court to stand by important precedents like Roe, as it has done numerous times in the past (even sometimes with the support of justices who don’t like abortion very much). There are huge reliance interests at stake if Roe is overturned.
Now it is true that there is occasionally a heroic story involving the Supreme Court overruling a precedent- for instance, Brown v. Board of Education, holding segregated schools are inherently unequal, or Gideon v. Wainwright, holding that state criminal defendants have the right to have a lawyer appointed for them. But those cases involved prior legal rules that were not only wrong, but had proven completely unworkable. For instance, by the time the Supreme Court got to Brown, there had been numerous cases that had been brought showing that in fact this or that “separate but equal” state accommodation was in fact not equal- cases involving such things as public law schools open only to whites (Blacks, the state said, could go to a law school in another state!). Those cases had totally eroded the separate but equal rule.
Similarly, in Gideon, you had the evidence of state criminal defendants getting their constitutional rights railroaded over and over again, forcing federal courts to get involved in habeas proceedings and order new trials. That system was terrible- why not get the defendant representation in the first instance so that you wouldn’t need the kludge of habeas proceedings and some innocent defendants having to serve time before their petitions could be heard? It proved unworkable, so the old case that authorized states to try people without lawyers, Betts v. Brady, was overturned and the Supreme Court required states to provide counsel.
Those cases happen, but they are rare. Most legal rules supported by precedent, including Roe and Planned Parenthood v. Casey on the abortion issue, are completely workable, even if you might not think they are right. And in the rare circumstance that the courts get completely out of step with the public, the constitutional amendment process exists to correct that.
It may seem counter-intuitive to defend a doctrine that says that something that might be “wrong” should nonetheless stay in place, but that is the system called for in the Constitution, and it’s the right system.