Stare Decisis – Precedent Is Binding For Thee But Not For Me

As the Senate considered the nomination of Judge Brett Kavanaugh to the Supreme Court, many were concerned that an apparently conservative judge replaced Justice Kennedy, who is considered a centrist “swing vote” on the Court. In particular, they accused Judge Kavanaugh of not being sufficiently bound to the doctrine of “stare decisis.”

Stare Decisis Defined

What is stare decisis? Literally from the Latin it means “let the decision stand.” The doctrine dictates that once a legal issue is decided, it should not be changed. Accordingly, if a Supreme Court case makes a certain interpretation of the US statutes or Constitution, that interpretation should not be disturbed by later Courts in later years.

Reasons for Stare Decisis

There are good reasons for the doctrine of stare decisis. Consistency of judicial interpretation allows people to be able to better predict the legal requirements under which they live. Also, the doctrine is meant to show deference to the work of previous Courts in resolving issues.But to what extent does the Court really observe stare decisis. As it turns out, although people tend to believe in preserving the past Supreme Court decisions they like, they are perfectly willing to ignore stare decisis when considering whether to overturn cases they don’t like.

Application of Stare Decisis

Just at the end of the Court’s term, the Court issued two decisions within a week overturning longstanding precedent, each by a 5-4 decision. In South Dakota v. Wayfair, the Court held that states may require out-of-state retailers to collect sales tax In doing so, it overturned previous decisions in National Bellas Hess v. Illinois in 1967, and Quill Corp. v. North Dakota in 1992, both holding that States could not force out-of-state sellers to collect sales tax. Similarly in  Janus v. AFSCME, the Court held that nonunion workers cannot be forced by employers to pay fees to unions, overruling a previous decision in Abood v. Detroit Board of Education in 1977. Many of those opposed to Judge  Kavanaugh’s nomination are particularly concerned about the possibility that he would provide a fifth vote to overturn the Supreme Court’s decision prohibiting the illegalization of abortion, Roe v. Wade. However, nearly all of those people were probably quite happy when in the 2003 decision of Lawrence v. Texas, another 5-4 decision, the Court ruled that States could not prohibit homosexual conduct, overruling its 1986 decision in Bowers v. Hardwick. Indeed, the Court went even further in 2015 in Obergefell v. Hodges, holding that States were required to recognize gay marriage. Again, stare decisis is held up as inviolate when thinking about a case someone likes, and is quickly rejected for cases the person doesn’t like.

What Should the Supreme Court Do?

So, should the Court always follow stare decisis? In this writer’s opinion, it should not when it is determined that the previous decision does not correctly interpret the Constitution. The Constitution establishes that it, and not Supreme Court decisions, is the supreme law of the land. The Supreme Court exists to interpret and apply the Constitution, not to create its own legal principles that surpass it.

Sam Ventola has a wide variety of experience in litigation, legal education, and mediation.  When he is not protecting constitutional rights, he enjoys volunteering in the community and spending time with his family, especially his grandson, Jack. 

Ventola Law serves the Denver Metro area including Arvada, Aurora, Boulder, Brighton, Commerce City, Castle Rock, Golden, Lakewood, Littleton and Arapahoe, Adams, Douglas and Jefferson Counties.