How Much Should Precedent Bind Judges?

Warren Richey explores the longstanding question, “How much should precedent bind judges?” in today’s Christian Science Monitor.

Whomever President Bush nominates to fill Sandra Day O’Connor’s seat on the US Supreme Court will inherit enormous power immediately upon confirmation. It is the power to assume Justice O’Connor’s role of breaking deadlocks in major cases. But perhaps more important, it includes the raw judicial power to overturn many of O’Connor’s decisions, should four other like-minded justices agree to take up the task.

With high-court opinions on affirmative action, school vouchers, states’ rights, and so-called “partial birth” abortion hanging in the balance, questions about the importance of upholding Supreme Court precedent will play a central role in upcoming confirmation hearings, legal analysts say. That is, in addition to dodging the usual inquiries about how he or she might rule in an abortion case, or other culture-war flash points, a Bush nominee will probably face a prolonged and intense interrogation probing a candidate’s views on stare decisis. Stare decisis is a Latin term for the judicial principle of upholding an earlier high-court decision unless special circumstances exist to overturn it. The phrase literally means to stand by things decided.

[…]

By tradition, a new justice who did not participate in earlier rulings is less bound by precedent than the justices who voted in those decisions. But there are risks every time the court authorizes an abrupt change of course. As Justice Potter Stewart wrote in a 1974 dissent: “A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the government.” He added, “No misconception could do more lasting injury to this court.”

[…]

Upholding precedent fosters stability and predictability in the law. And it enhances the legitimacy of the court by demonstrating to the nation that the justices themselves accept and respect the court’s own opinions. On the other hand, if the high court adhered strictly to precedent, it would be unable to correct mistakes in constitutional interpretation, and future interpretation would only perpetuate the errors. For example, Plessy v. Ferguson, the 1896 case upholding “separate but equal” racial segregation, would have continued as the law of the land had the Supreme Court not overruled it in the 1954 landmark decision Brown v. Board of Education.

While stare decisis is at the heart of the Common Law system, it should not constrain Supreme Court Justices from reversing obvious error in Constitutional interpretation. The Constitution, not the body of Court rulings, is the supreme law of the land.

There may come a point where an incorrect reading of the Constitution is so engrained in our conception of the system as to become “settled law.” For example, the reasoning behind Marbury v. Madison (1803), which gave the Supreme Court the right to strike down acts of Congress, was incredibly thin. The gross expansion of the Commerce power in NLRB v. Jones & Laughlin Steel Corp. (1937), was rather plainly a departure from the text of the Constitution, not to mention 150 years of judicial rulings. Nonetheless, overturning those decisions at this juncture would radically restructure our system of government and would be unwise.

The privacy right, first announced in 1965, is much less central to our polity as it the offshoot right to abortion during the first two trimesters (later, until “viability”) announced in Roe in 1973.

FILED UNDER: General
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. denise says:

    The article (at least the excerpt you quoted) does not mention the difference between statutory and constitutional stare decisis.

    One of the main rationales for stare decisis is that if the court gets it wrong, there are mechanisms in place for overruling the court (either correcting legislation or amending the constitution). Therefore, if there is no constitutional or legislative amendment, there is something of a presumtion that the court got it right in the first place.

    Recognizing that amending legislation is not that difficult, and amending the constitution is quite difficult indeed, the courts have long held that stare decisis is much more powerful in legislative interpretation than in constitutional interpretation.

    In other words, the courts have always recognized that stare decisis has limits, particularly with respect to constitutional issues. (Judges don’t think they are the voice of God, at least on an institutional level. I know a few individual judges who may think they are.)

  2. Leopold Stotch says:

    While stare decisis is at the heart of the Common Law system, it should not constrain Supreme Court Justices from reversing obvious error in Constitutional interpretation. The Constitution, not the body of Court rulings, is the supreme law of the land.

    You cannot find a single American government text that states this concept this clearly. Ninety percent of my students are convinced we live under a common law system.

  3. Anderson says:

    … “and the Constitution is what the courts say it is.”

  4. Herb says:

    Every Supreme Court Judge should have the right to break precedent of prior decisions. The court gets it wrong on many of its decisions.

    Think I’m wrong????

    How about the decision on Eminent Domain ???

  5. There may come a point where an incorrect reading of the Constitution is so engrained in our conception of the system as to become “settled law.”

    The problem with this approach is that on what basis do you make that determination? The same way that currently “binds” judges to stare decisis.

    Either ALL wrongly decided cases are subject to being overturned or we’re right where we are now–with “settled law” being contingent on a court’s current membership.