Taking Precedent Seriously

Abstract

The fate of stare decisis hangs in the wind. Different factions of the Supreme Court are now engaged in open debate—echoing decades of scholarship—about the doctrine’s role in our constitutional system. Broadly speaking, two camps have emerged. The first embraces the orthodox view that stare decisis should reflect “neutral principles” that run orthogonal to a case’s merits; otherwise, it will be incapable of keeping the law stable over time. The second argues that insulating stare decisis from the underlying merits has always been a conceptual mistake. Instead, the doctrine should focus more explicitly on the merits—by diagnosing the magnitude of past error, and allowing “egregiously wrong” decisions to be dismantled without constraint. This article develops a compromise approach: an “aggregate voting rule,” requiring the combined vote across both courts—the one that crafted the holding at t1 and the one scrutinizing it at t2—to total a majority. In other words, the durability of past decisions should depend on the amount of support they were originally able to command. This would capture the main appeal of reform position—the idea that stare decisis should not preclude the correction of significant missteps—but also retain the core of stability that defines the orthodox view. Under the latter, the ideal of respect for precedent drives the doctrine’s content. Under an aggregate voting rule, the same ideal would express itself, instead, in the doctrine’s mechanical structure—freeing judges to focus on the merits, without abandoning the (non-merits) values that have long animated stare decisis. This would facilitate the airing out of disagreement and the forward motion of law, while also encouraging judges to locate avenues of doctrinal compromise.