Political Stare Decisis

Abstract

The doctrine of stare decisis famously instructs judges to respect past decisions even if they believe these decisions are wrong. Many believe stare decisis serves venerable values and bemoan its apparent demise, especially at the Supreme Court level. But can something like stare decisis appear in politics too? Can we expect our public officials, much like we expect our judges, to adhere to past decisions even if they think they are wrong? Or when they face short term temptations to ignore the past? If we rely on our normal intuitions about politics or observe its current state, the answer seems to be NO. And while previous scholarship presents a more qualified view, that scholarship is greatly incomplete. It focuses on a limited set of political institutions that primarily resemble judicial ones. Or it is obsessed with how courts should incorporate what appears as a political analogy to stare decisis into legal doctrine—a normative or interpretive enterprise, not an explanatory one. This Article fills this gap. It argues that what it calls political stare decisis is in fact possible, even inevitable, across a wide variety of institutions and settings (including in legislatures, executives, administrative agencies, and even nation states and supranational organizations) and it moreover identifies the precise conditions where we can expect it to occur. In addition, the Article comprehensively theorizes how exactly political stare decisis operates “on the ground,” including: which events or decisions in politics establish constraining political precedents? How do public officials reason about these precedents and apply them to the present? And when and how are such political precedents likely to be overruled? Finally, and more prescriptively, the Article suggests what public officials might be able to do to deliberately “tinker” with political stare decisis. For example, how public officials can establish entirely new political precedents, how they might strengthen existing political precedents that they like (or weaken existing political precedents that they dislike), and what institutional design or behavioral solutions are generally available to make political stare decisis more robust. While much in the discussion demonstrates that political stare decisis and the more familiar institution of judicial stare decisis substantially diverge, the Article concludes by suggesting that the differences are much less substantial than meets the eye. Instead of completely divergent practices, judicial stare decisis may ultimately be nothing more than one species of the general practice of political stare decisis. The Article argues that acknowledging this fact significantly improves our understanding of judicial stare decisis. Among other things, it shows us when judicial stare decisis really is—as a common meme now puts it—for suckers” and when it is not; it flags new ways to save it from its alleged demise; and it illuminates how those who work to achieve their goals through the courts and their precedents should appropriately (and effectively) approach this task.