Starger on Stare Decisis and the U.S. Supreme Court

Colin P. Starger, University of Baltimore School of Law, has posted The Dialectic of Stare Decisis Doctrine, a chapter in the forthcoming Precedent in the U.S. Supreme Court, ed. Christopher J. Peters (Springer, 2014).  Here is the abstract:

In the United States Supreme Court, the concept of stare decisis operates as both metadoctrine and doctrine. On the one hand, stare decisis functions as a generally applicable presumption in favor of adherence to precedent. This presumption is metadoctrinal because it provides a generic argument against overruling that applies independently of the substantive context of any given case. On the other hand, when the Court considers overruling a particularly controversial precedent, it usually weighs the constraining force of stare decisis by invoking factors and tests announced in its own prior caselaw. In other words, the Court has precedent about when to follow its precedent. This “precedent about precedent” seems doctrinal in the conventional sense – it is the Court’s doctrine of stare decisis.

The existence of a stand-alone stare decisis doctrine in the Supreme Court was hardly inevitable. The Constitution does not mention precedent at all and thus provides no textual guidance about when stare decisis should be respected. Perhaps predictably, the Court historically decided overruling questions on a case-by-case basis without any reference to “precedent about precedent.” Prior to the early twentieth century, if Court opinions discussed stare decisis at all, they typically referred to the concept as a “maxim” or “principle” that abstractly weighed in favor of following past decisions. Though the maxim commanded respect, its authority and meaning were derived from common law tradition rather than from prior Court pronouncements.

Not so today. Now major overruling debates on the Court inevitably involve citation to past precedent about precedent. Moreover, this doctrine of stare decisis is itself contested. Justices dispute which of their prior opinions state the proper test for overruling precedent. How did this happen? How did stare decisis transform from a common law maxim into a doctrinal dialectic? And does the Court’s contemporary “precedent about precedent” have genuine precedential value? This Chapter – my contribution to a forthcoming book entitled Precedent in the U.S. Supreme Court (Springer, edited by C.J. Peters) – seeks to answers these questions.

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