Supreme Court Nominees and Stare Decisis

Controversy always surrounds the pick of a new United States Supreme Court Justice. There are predictions from all corners regarding the political stance of a potential Justice and how that stance might impact future decisions of the Court. Often missing is a discussion of the bedrock principle of stare decisis.

Translated from Latin, stare decisis means to stand by things decided. It is a legal principle meaning that courts make rulings based on precedent, i.e., past decisions. This principle provides predictability and stability in our society by, among other things, limiting the pendulum effect of political influence in our judicial system.  Because of stare decisis, the Supreme Court rarely overturns itself, even when a current group of sitting Justices might have decided a past case differently. However, there are exceptions to every rule, and reversals of previous opinions have occurred.

One of the most famous examples of the Supreme Court overturning precedent was the landmark case of Brown v. Board of Education of Topeka decided in 1954. Prior to Brown, the Court had ruled in the 1896 decision Plessy v. Ferguson that racial segregation was lawful so long as the government provided facilities that were “separate but equal.”  The “separate but equal” doctrine was the law of the land for over 50 years. During that time, a handful of cases touched on the issue of segregation but did not directly address the validity of the doctrine itself.  Brown put the doctrine squarely at issue, and the Court examined whether “separate but equal” fulfilled the guarantee of equal protection of the laws found in the 14th Amendment.  The Court unanimously held that it did not. The Court noted that “[i]n approaching this problem, we cannot turn the clock back to 1868 when the [14th] Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written.” The Court went on to discuss the changes that had occurred to public education in the 20th century and stated that education was perhaps the most important governmental function at the state and local levels. Against that backdrop of societal change and advancement in public education, the Court overturned the “separate but equal” doctrine.

A more recent decision by the Supreme Court overturned a 1990 decision, Austin v. Michigan Chamber of Commerce, regarding corporate campaign spending. In 2010, the Court held in a widely criticized case, Citizens United v. FEC, that the restriction of corporate spending to support a political candidate violated a corporation’s right to free speech. Setting aside the substantive issues and fallout of Citizens United, it is interesting to note what the majority and dissent each had to say about stare decisis.  In justifying its departure from settled law, the majority stated that the prior opinion of the Court was “not well reasoned” and had been “undermined by experience” between the years of 1990 and 2010. The dissent responded as follows:

The final principle of judicial process that the majority violates is the most transparent: stare decisis. I am not an absolutist when it comes to stare decisis…No one is. But if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five Justices, for overturning settled doctrine.”

The dissent opined that the majority had failed to articulate such a justification.

As the Court evolves, no one can really know how new Justices will decide cases, especially when those cases seek to reverse precedent. It is certain, however, that stare decisis will be considered in all future decisions.















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