Sunday, September 12, 2004

Is Stare Decisis a constitutional rule?

There are, it seems to me, two meaningful possibilities for the underpinnings of the rule of Stare Decisis in Supreme Court opinions:

1. It is a Constitutional doctrine. According to the text and structure of the Constitution -- and perhaps even the concept of precedent at the time of the framing -- stare decisis is necessary to effective judicial review, and is implict in the grant of power to the judiciary under Article III.

2. It is mere policy. There is nothing necessarily constitutional about stare decisis (just as, perhaps, there is nothing truly constitutional about judicial review). The policy is important and highly pragmatic, but the Court need not abide by its previous decision-making. As a policy tool, it plays the role of check.

So, is stare decisis a constitutional necessity? What if the rule of stare decisis were written into Article III of the Constitution -- how would judicial review change?


Blogger Matt Hanchey said...

Rather than answer Chris's question, I'm going to make an additional comment on stare decisis as a policy. There are times when the Supreme Court decides to change the law but, for whatever reason, doesn't want to overturn an older holding. It therefore writes an opinion that purports to be further explication of the older opinion but actually introduces an entirely new rule. The result is that the rule is less clear than it would be if it were written without attention to the older rule. I wrote my Note on an uncertainty in the law that may have just been the result of lip service to an old rule.

September 13, 2004 at 9:14 AM  
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