Stare Decisis

Stare decisis is one of the most important doctrines in common law. It is the doctrine under which courts adhere to precedent on questions of law in order to ensure certainty, consistency, and stability in the administration of justice.1 More specifically, it has been defined as "to stand by decided cases; to uphold precedents; to maintain former adjudications."2 In Latin, the term translates to "to stand by that which is decided." As practiced in the United States, the rule of stare decisis is matter of technique. Basically, in whatever way courts reach their conclusion, they are expected to place the situation they are judging within the generalized class of some existing decision. In doing so, they may, if they choose, disregard the opinion of that decision entirely. There are two types of stare decisis. Vertical stare decisis is the best known one, and it requires that once a high court makes a holding on an issue, lower courts are required to follow that precedent. Stare decisis also applies to courts of equal rank, including the deciding court itself. This is called horizontal stare decisis. Although one can easily argue whether the doctrine of stare decisis is a good one, or a bad one, it is justified by the desire to maintain continuity and stability in the law, and also by the ideas of justice and fairness. It promotes justice by establishing rules that enable many legal disputes to be concluded fairly. It also enhances the legitimacy of the court in two ways. One, by demonstrating that although there are changes in members of the court as time passes, justices still respect the court's own opinions and two, legitimacy is increased when legal rules are consistently applied and are the product of impersonal and reasoned judgment. Under the doctrine of stare decisis, only a point of law decided in a judicial opinion is binding on other courts as precedent. Questions of fact determined by a court have no binding effect on any subsequent case involving similar questions of fact. The facts of each case are recognized as being unique. There are only three judicially acceptable reasons to overturn precedent. These reasons are as follows: First, when the ruling is judicially unworkable. Second, when precedent is inconsistent with other cases, and third, when the reasoning has become outdated or conflicts with contemporary values (i.e. changing circumstances.) The constitution is a "living document" which, as Chief Justice Earl Warren once stated, "...must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."3

Over the years, stare decisis had proved to be much stronger in statutory cases than in constitutional cases. In constitutional cases, stare decisis is less strict and much more flexible. United States Supreme Court Justice Brandeis wrote that for constitutional cases, stare decisis . . . is not a universal, inexorable command.4 Also other courts have taken a less rigid approach to the doctrine stating things such as "stability should not be confused with perpetuity,"5 and "reconsidering cases enables the law to grow and change to meet the ever-changing needs of an ever-changing society and yet, at once, to preserve the very society which gives it shape."6 If the high court strictly adhered to precedent then it would only perpetuate any previous mistakes in constitutional interpretation. Basically, stare decisis means different things to different judges. Some practice judicial restraint and are reluctant to overrule precedent, while others have a major priority to correct what they view as fundamental errors in constitutional interpretation, thus overruling precedent. Most surprising of all however, are those judges who call upon the doctrine of stare decisis when it is in their favor to do so, and reject it when its not.

Stare decisis poses a major dilemma for judges because, in most cases, it is supposed to be "binding". The principle of stare decisis restricts lower court judges to follow the precedents of higher courts so that there is not a huge number of amateurish judges forming incoherent decisions; it structures the judicial branch of government into a whole, speaking with one voice. All judges within a jurisdiction are expected to apply a rule of law the same way until a higher court overturns that rule. Adherence to the rulings of cases such as Brown v. Board of Education would never have been possible without a strong vertical stare decisis to keep unruly lower court judges in check. But are there limits to this principle of stare decisis? This is the dilemma that most judges face. When higher court judges completely misconstrue the interpretation of the constitution and it is held as precedent, should the lower courts submissively conform? To what degree should a higher court judges' understanding of the constitution take precedence over a lower court judges understanding? How should the judges rule? Should they stick to the doctrine or should they overrule it because they believe it was decided incorrectly according to their interpretation of the constitution?

This is the hard-hitting quandary that judges face, especially when they are deciding very controversial cases like abortion, gay rights, and affirmative action. Stare decisis requires lower court judges to follow higher courts, which seems sensible enough, but it also encourages higher courts to stick with a mistake rather than to admit and correct it. Judges were appointed to uphold the constitution, not stare decisis. The Amar brothers wrote that "Indeed, the same Constitution that establishes the federal courts and empowers them to hear cases arising under this Constitution requires all judges to swear an oath of allegiance not to their past rulings, but to the document itself. If neither the executive nor legislative branch of the federal government may unilaterally change the meaning of the Constitution, neither should the judiciary be able to do so."7 This approach argues for a weak form of stare decisis. They basically go on to say that the "doctrine" of stare decisis should not take precedence over the "document", which is the constitution. Incorrect rulings should not be affirmed just to follow precedent, but instead the court should respect the constitution and take necessary steps to overrule a decision that goes against it. Stare decisis is used to prevent judges from enacting their own policy preferences into law and to maintain stability in the law, not to rigidly follow and consequently reaffirm cases that could potentially be decided mistakenly. When there is "binding" stare decisis and a judge feels that it was decided incorrectly, what is he to do? Should he stick to the doctrine, or to his oath to unduly protect and uphold the constitution?