This month we are sharing a selection of paired pieces from The Federalist Society's Liberty Month in July 2015. We hope you enjoy reading them. Click here to visit the paired piece for this entry.
* * *
Stare decisis makes it harder for judges to change the law. The principle, which captures the idea that past decisions deserve respect, directs the forces of change away from the courts and toward the domains of politics. It allows people to plan against a stable backdrop, it underscores the distinction between the judiciary, which aspires to independent in the application of preexisting legal norms, and the legislative and executive branches, whose responsiveness to the electorate and capacity for innovation are essential.
No decision maker ought to ignore the past. But when the President and Congress grapple with a pressing social problem, we want creative, even revolutionary solutions on the table. If our elected representatives choose a path we don’t like, we can hold them accountable at the polls. That’s not true of federal judges, who enjoy what is effectively employment for life. Insulating judges from official and electoral pressures is a defining feature of our federal system, and it contributes to the robust protection of legal rights. But the lack of oversight can be disconcerting, especially when the Constitution doesn’t provide a clear answer to a question or when the fate of a longstanding rule seems to depend on the interpretive predilections of a handful of judges.
That’s where stare decisis comes in. Like the Constitution itself, judicial precedent offers a preexisting, publicly accessible source of legal meaning. It’s an antidote to what Alexander Hamilton called the exercise of “arbitrary discretion.” Fidelity to precedent can also combine the diverse perspectives of numerous judges into decisions of a unified court that maintains its identity over time. That explains why the Supreme Court writes in such glowing terms about stare decisis and its role in our legal order.
But there are downsides. Most importantly, stare decisis means that in some cases, today’s judges will stand by decisions they think are wrong. Tolerating a judicial error can be troubling, whether its effect is to invalidate a duly enacted statute or to deny recognition of a protected liberty. It’s one thing for the Supreme Court to elevate the Constitution’s commands over the outputs of ordinary politics. It’s quite another thing for the Court to privilege its own pronouncements at the expense of sound interpretation.
In thinking about this problem, we would do well to keep in mind that stare decisis isn’t absolute. While the Supreme Court demands a “special justification” before departing from precedent, it regularly finds such justifications to exist. If the first rule of stare decisis is that past decisions warrant respect, a close second is that no decision is untouchable.
The fact that cases can be overruled doesn’t remove every concern about stare decisis. By design, some flawed decisions will stick around. The possibility of overruling also creates a risk that judges might be inconsistent in their treatment of past decisions, offsetting the benefits that deference to precedent is meant to deliver. There are practical challenges, too. Even if a judge believes that respecting precedent is good practice, how should she handle decisions by previous judges who weren’t so deferential? What about the possibility that future courts might reject stare decisis regardless of whether today’s judges defer to their predecessors?
These are serious and difficult questions. Yet for all its complexity, stare decisis retains its potential as a force of stability and impersonality. Deferring to precedent helps to ensure that the law is the province of evenhanded and durable principles. It furnishes judges with materials to fall back on when constitutional (or statutory) provisions leave multiple options available. Above all, deference to precedent reduces the impact of the individual judge on the trajectory of the law. That’s a valuable thing for a constitutional system that has chosen the rule of law over the rule of men and women, even ones who don judicial robes.
Fidelity to precedent guides and constrains the deliberations of the judicial branch. At the same time, it lets all of us make plans with more confidence that the law will tend toward continuity rather than erratic change. Of course, stare decisis isn’t the only way to pursue stability and the rule of law. But it’s a good way, and it fits well with the framework of government that the Constitution sets forth. Stare decisis highlights the fact that the work of the courts is fundamentally different from the work of the political branches. In doing so, it makes the separation of powers that much sharper.