Challenging the Dubious Doctrine of Stare Decisis

May 30, 2019 Updated: June 3, 2019


Associate Justice of the Supreme Court Stephen Breyer wrote a dissenting opinion in mid-May, expressing his displeasure that a majority of his colleagues on the court overturned a four-decades-old precedent.

Breyer fretted, “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

At issue is the doctrine of “stare decisis” (pronounced STAR-ay day-SEE-sis), which holds that Supreme Court decisions should be allowed “to stand as decided” (the approximate translation of “stare decisis” from Latin) rather than be overturned.

Without arguing the merits of any particular case, the notion that a Supreme Court decision is sacrosanct and irreversible is indefensible on logical grounds and highly problematical on pragmatic grounds in our democratic system.

Judicial Infallibility

In the legislative branch of government, Congress occasionally repeals legislation passed by previous Congresses. In the executive branch, presidents and department heads will undo, reverse, or ignore regulations instituted by their predecessors, and sometimes even defy extant laws. Why should it be any different in the third branch of the federal government?

Why shouldn’t the Supreme Court be free to reverse decisions rendered by earlier courts? It makes a mockery of the ideal of having three coequal branches of government, when the policies of two of them may be undone while the third branch’s rulings are permanently binding.

To assert that a Supreme Court decision can’t be undone implies some sort of judicial infallibility. Actually, it’s even weirder than that: If a Supreme Court precedent was established by a 5–4 ruling, then does that mean that justices are infallible when they are in the majority, but fallible when they are in the minority? How absurd is that?

Accepting stare decisis as an inviolable principle essentially elevates a Supreme Court majority to the level of a secular papacy endowed with infallibility. This repudiates the democratic nature of the U.S. system, especially since Supreme Court justices, like the pope, are neither elected by the people nor accountable to them, but have lifetime tenure.

Today’s proponents of stare decisis are making a power play. They assert stare decisis as an unchallengeable tenet—a dogmatic orthodoxy to be defended from pesky heretics—in the attempt to delegitimize any move to overturn Supreme Court precedents.

That attitude is arrogant and illiberal. It reminds me of the position struck by the Soviet leadership during the Cold War: Any condition that favored the United States was negotiable, whereas any territory or strategic advantage gained by the Evil Empire was off the table—completely nonnegotiable.

There’s another similarity between the stare decisis dogmatists and communists: their distrust of the people and concomitant disdain for democracy.

The communist attitude toward democratic elections is one man, one vote, one time. Once communists have gained power, though, democracy goes out the window and they will oppress the people rather than submit to a democratic election that might reverse their gains. Likewise, stare decisis is invoked to thwart potential reversals.

The desire of stare decisis zealots to thwart legal reform contrasts strikingly with the humility of the founding generation. In his “Farewell Address,” President George Washington, understanding that laws are written by fallible human beings, explicitly rejected any attempt to impose irrevocable constitutional shackles on future generations of Americans. On the contrary, he told the American people that they should amend the Constitution when needed to conform to new realities and understandings.

Changing Opinions

My opposition to stare decisis doesn’t mean that I disrespect precedent. Indeed, our precious common-law system is based on precedent, practical experience, and long-held, widely accepted values. Overturning Supreme Court decisions willy-nilly would be disruptive, if not destructive of the stability and continuity that our common-law system provides. But precedents must not be regarded as eternal truths written in stone.

Stare decisis must not be exalted as an absolute principle. It must not impose an inflexibility that is incompatible with a society in which there often are multiple (and changing) opinions about right and wrong.

The truth is that Breyer—and others now citing stare decisis—don’t really believe that it is a universally binding principle. After all, they themselves approve of certain past Supreme Court reversals of prior flawed court decisions (e.g., the “separate but equal” doctrine).

Their current fervor for stare decisis is a matter of expediency. They hope to prevent the five nonprogressive justices on the court from overturning such persistently controversial decisions as Roe v. Wade. Tragically, millions of Americans defend Roe because of its pro-abortion content, instead of recognizing it as an instance of judicial overreach.

Regardless of one’s stance on abortion, we should distrust a court that arrogates to itself the authority to decide when life begins. When life begins is an ontological question. The Supreme Court is a Supreme Court of jurisprudence, not of ontology. To adapt a well-worn cliché: Ontological questions are beyond their pay grade.

Indeed, as medical technology continues to improve and expands our knowledge of biology, it could well be time to revisit the question of the legal rights of the unborn. As John Maynard Keynes once said, “When the facts change, I change my mind.”

Supreme Court justices shouldn’t be too proud to follow that advice. The opinions of five justices more than 40 years ago shouldn’t prevent today’s justices from re-examining their premises.

Obviously, there’s no answer to the question of where a mother’s rights end and a fetus’s rights begin that will satisfy or unite all Americans. But whatever decision is made should be made by the elected representatives of the people, not by five unelected judges. Such momentous decisions should be democratic rather than edicts issued by a minuscule elite.

Stare decisis—a spurious doctrine even in theory—should not be allowed to become an oppressive dogma in practice.

Mark Hendrickson is an adjunct professor of economics and sociology at Grove City College. He is the author of several books, including “The Big Picture: The Science, Politics, and Economics of Climate Change.”

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.