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Precedent and Jurisprudential Disagreement (stare decisis) by Amy Coney Barrett
Precedent and Jurisprudential Disagreement from the Texas Law Review, 2015.
III. Institutional Legitimacy and Reliance Interests
Because stare decisis is relatively weak in constitutional cases, the moderating function is the main contribution of the constraint against overruling in cases involving deep-seated jurisprudential disagreement. It forces the Court to proceed cautiously and thoughtfully before reversing course, but it does not force the Court to retain precedent. Yet while this may be consistent with the Court’s actual practice, it is contrary to the arguments of those who have argued in favor of a significantly stronger role
for stare decisis in constitutional cases.89
It also arguably gives short shrift to the risks associated with departures from precedent—in particular, preservation of the Court’s institutional legitimacy and the protection of reliance interests.90 This Part considers those concerns in turn and concludes
that even a weak system of constitutional stare decisis protects institutional legitimacy and reliance interests more than is commonly supposed.
A. Institutional Legitimacy
Leaving room for new majorities to overrule old ones allows changed membership to change what the Court says the Constitution means. One of the stated goals of stare decisis, including stare decisis in constitutional cases, is institutional legitimacy, both actual and apparent.91 If the Court’s opinions change with its membership, public confidence in the Court as an institution might decline.92 Its members might be seen as partisan rather than impartial93 and case law as fueled by power rather than reason.94 Others have challenged the view that protecting the Court’s reputation is a valid reason to retain precedent.95 Akhil Amar captures the criticism well:
But even assuming that the Court should make decisions with an eye toward its reputation, there is little reason to think that reversals would do it great damage. Stare decisis is not a hard-and-fast rule in the Court’s constitutional cases, and the Court has not
been afraid to exercise its prerogative to overrule precedent.97 Still, public confidence in the Court remains generally high.98 Moreover, members of the public (and particularly elites) regularly argue that the Court should overrule certain of its cases.99
Court watchers embrace the possibility of overruling, even if they may want it to be the exception rather than the rule. The “protecting public confidence” argument seems to assume that the public would be shaken to learn that a justice’s judicial philosophy can affect the way she decides a case and that justices do not all share the same judicial philosophy.1
III. Institutional Legitimacy and Reliance Interests
Because stare decisis is relatively weak in constitutional cases, the moderating function is the main contribution of the constraint against overruling in cases involving deep-seated jurisprudential disagreement. It forces the Court to proceed cautiously and thoughtfully before reversing course, but it does not force the Court to retain precedent. Yet while this may be consistent with the Court’s actual practice, it is contrary to the arguments of those who have argued in favor of a significantly stronger role
for stare decisis in constitutional cases.89
It also arguably gives short shrift to the risks associated with departures from precedent—in particular, preservation of the Court’s institutional legitimacy and the protection of reliance interests.90 This Part considers those concerns in turn and concludes
that even a weak system of constitutional stare decisis protects institutional legitimacy and reliance interests more than is commonly supposed.
A. Institutional Legitimacy
Leaving room for new majorities to overrule old ones allows changed membership to change what the Court says the Constitution means. One of the stated goals of stare decisis, including stare decisis in constitutional cases, is institutional legitimacy, both actual and apparent.91 If the Court’s opinions change with its membership, public confidence in the Court as an institution might decline.92 Its members might be seen as partisan rather than impartial93 and case law as fueled by power rather than reason.94 Others have challenged the view that protecting the Court’s reputation is a valid reason to retain precedent.95 Akhil Amar captures the criticism well:
“ It does not seem to me that when the Supreme Court has made a mistake, it ought to respond by not telling the citizenry because it fears that the American people cannot handle the news.”96
But even assuming that the Court should make decisions with an eye toward its reputation, there is little reason to think that reversals would do it great damage. Stare decisis is not a hard-and-fast rule in the Court’s constitutional cases, and the Court has not
been afraid to exercise its prerogative to overrule precedent.97 Still, public confidence in the Court remains generally high.98 Moreover, members of the public (and particularly elites) regularly argue that the Court should overrule certain of its cases.99
If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging.
Court watchers embrace the possibility of overruling, even if they may want it to be the exception rather than the rule. The “protecting public confidence” argument seems to assume that the public would be shaken to learn that a justice’s judicial philosophy can affect the way she decides a case and that justices do not all share the same judicial philosophy.1
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