The Dialectic of Stare Decisis Doctrine

Starger, Colin

doi:10.1007/978-94-007-7951-8_2

Colin Starger⁴

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 33))

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Abstract

This chapter examines the Supreme Court’s “precedent about precedent”—its doctrine regarding whether and when the Court may overturn its own prior constitutional decisions. Due largely to the influence of Justice Louis Brandeis in the early twentieth century, the role of stare decisis in the Court’s constitutional cases transformed from that of a vague common-law maxim to the status of contested doctrine. Using graphical “opinion maps” to trace the evolution of the Court’s case law on stare decisis, the author illustrates the division of stare decisis doctrine into two competing traditions: a “weak” tradition that allows overruling based on the supposedly faulty reasoning of a prior decision; and a “strong” tradition that demands some independent, non-merits-based justification for overruling. The author demonstrates that individual Justices frequently have aligned themselves with both traditions across different cases, and suggests that the force of the Court’s “precedent about precedent” is more rhetorical than constraining.

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Notes

1.
See, for example, Pennsylvania v. Coxe, 4 U.S. 170, 192 (1800) (argument of counsel) (“Stare decisis, is a maxim to be held forever sacred, on questions of property.”); Cook v. Moffat, 46 U.S. 295, 309 (“So far … as the present case is concerned, the court do not think it necessary or prudent to depart from the safe maxim of stare decisis.”); Bienville Water Supply Co. v. City of Mobile, 186 U.S. 212, 217 (1902) (“[W]e may, on the principle of stare decisis, rightfully examine and consider the decision in the former case as affecting the consideration of this.”) (all emphases in originals).
2.
Citizens United v. Federal Election Comm’n, 558 U.S. 310, 130 S. Ct. 876 (2010).
3.
See Citizens United, 130 S. Ct. at 913 (overruling Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003)).
4.
Citizens United, 130 S. Ct. at 912 (quoting Montejo v. Louisiana, 129 S. Ct. 2079, 2088–89 (2009)) (emphasis in original).
5.
Citizens United, 130 S. Ct. at 939 (Stevens, J., dissenting) (emphasis in original).
6.
Id. at 938 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 864 (1992)).
7.
285 U.S. 393, 405 (1932) (Brandeis, J., dissenting).
8.
See West v. Barnes, 2 U.S. 401 (1791) (first published opinion by the Court), and Hutchinson Ice Cream Co. v. Iowa, 242 U.S. 153 (1916) (first Brandeis opinion for the Court).
9.
This number is based on a simple keyword search for “stare decisis” in Westlaw’s comprehensive Supreme Court database. This search produces 45 separate decisions published before 1916. However, I eliminated five of these decisions because the phrase did not appear in an actual opinion or summary of counsel’s argument.
10.
These numbers are based upon an examination of the decisions discussed in note 9 above. Although modern Supreme Court reports do not separately summarize the arguments of counsel, this practice is evident in early-era reporting as late as 1870. See Legal Tender Cases, 79 U.S. 457, 459–528 (1870) (devoting 69 pages to reporting arguments of counsel).
11.
See Pennsylvania v. Coxe, 4 U.S. 170 (1800).
12.
Id. at 192 (emphasis in original).
13.
See generally Ex parte Crane, 30 U.S. 190 (1831).
14.
See id. at 221, 222 (Baldwin, J., dissenting).
15.
Cook v. Moffat, 46 U.S. 295 (1847).
16.
Id. at 309 (emphasis in original).
17.
See The Genesee Chief, 53 U.S. 443, 458–59 (1851) (overruling The Thomas Jefferson, 23 U.S. 428 (1825)).
18.
The Genesee Chief, 53 U.S. at 458.
19.
Id. (emphasis in original).
20.
Id. at 459.
21.
57 U.S. 314 (1853).
22.
Diversity jurisdiction refers to federal courts’ exercise of authority over cases involving parties who are citizens of different states and an amount in controversy greater than a statutory minimum. See 28 U.S.C. § 1332.
23.
57 U.S. at 325–26 (citing Louisville, C. & C. R. Co. v. Letson, 43 U.S. 497 (1844)) (latter emphasis added).
24.
Marshall, 57 U.S. at 338 (Daniel, J., dissenting).
25.
Id. at 343.
26.
Id.
27.
Of course, Grier might have responded that The Genesee Chief concerned the expansion of federal jurisdiction rather than its contraction. The merits of this distinction are irrelevant; the point is that Grier and Daniel did not debate it.
28.
See Kean v. Calumet Canal & Improvement Co., 190 U.S. 452, 505–07 (1903) (White, J., dissenting). Compared to Brandeis’s subsequent use of “precedent about precedent,” Justice White’s argument for overruling was neither successful nor influential in Court discourse.
29.
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 398 (1932) (citing Gillespie v. Oklahoma, 257 U.S. 501 (1922)).
30.
Coronado Oil, 285 U.S. at 398–99.
31.
Id. at 405 (Brandeis, J., dissenting).
32.
Id. Res judicata (“a thing adjudicated”) refers to the doctrine also known as “claim preclusion,” which bars the same parties from litigating a second lawsuit on the same claim. Brandeis actually cribbed his “universal inexorable command” phrase from a dissent he had penned 8 years earlier in Washington v. W.C. Dawson & Co., 264 U.S. 219, 238 (1924) (Brandeis, J., dissenting). Like any sensible and productive writer, Brandeis borrowed freely from his own prior work.
33.
285 U.S. at 406. Brandeis lifted the phrase “more important that a rule of law be settled, than that it be settled right” from a dissent he wrote 5 years earlier in DiSanto v. Pennsylvania, 273 U.S. 34, 42 (1927) (Brandeis, J., dissenting).
34.
285 U.S. at 406–08.
35.
Id. at 406 n.1.
36.
Id. at 407 n.2.
37.
Id. at 408 n.3.
38.
Id. at 410, 412.
39.
Id. at 412.
40.
See Helvering v. Mountain Producers Corp., 303 U.S. 376, 387 (1938) (overruling Gillespie).
41.
See St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 93 (1936) (Stone, J., concurring); Connecticut General Life Ins. Co. v. Johnson, 303 U.S. 77, 85 & n. 10 (1938); United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 579 (1944) (Stone, C.J., dissenting).
42.
See National Mut. Ins. Co. of District of Columbia v. Tidewater Transfer Co., 337 U.S. 582, 618 n. 11 (1949) (Rutledge, J., concurring).
43.
See Citizens United, 130 S. Ct. at 913 (overruling Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)). The Court notably also overruled another, more-recent precedent, McConnell v. Federal Election Commission, 540 U.S. 93 (2003).
44.
Citizens United, 130 S. Ct. at 912 (quoting Montejo v. Louisiana, 129 S. Ct. 2079, 2088–89 (2009)) (latter emphasis added).
45.
For a thorough discussion of the theory animating this doctrinal mapping schema, see “Exile on Main Street: Competing Traditions and Due Process Dissent” (Starger 2012a) and “Expanding Stare Decisis: The Role of Precedent in the Unfolding Dialectic of Brady v. Maryland” (Starger 2012b).
46.
130 S. Ct. 876 (2010). Citizens United was a five-to-four decision. Justice Kennedy wrote the majority opinion. Chief Justice Roberts wrote a separate concurrence, which was joined by Justice Alito. Justice Stevens’s dissent received four votes.
47.
556 U.S. 778 (2009). Montejo was a five-to-four decision. Justice Scalia wrote the majority opinion. Justice Alito wrote a separate concurrence. Justice Stevens’s dissent received four votes.
48.
555 U.S. 223 (2009). Pearson was a nine-to-zero decision. Justice Alito wrote the majority opinion.
49.
501 U.S. 808 (1991). Payne was a six-to-three decision. Chief Justice Rehnquist wrote the majority opinion. Justice Scalia wrote a separate concurrence that received three votes. Justice Marshall’s dissent received three votes.
50.
321 U.S. 649 (1944). Allwright was an eight-to-one decision. Justice Reed wrote the majority opinion which received seven votes. Justice Frankfurter concurred in result only. Justice Owen Roberts wrote a solo dissent.
51.
285 U.S. 393 (Brandeis, J., dissenting). Coronado Oil was a five-to-four decision. Justice McReynolds wrote the majority opinion. Justice Stone’s dissent received four votes. Justice Brandeis’s dissent received three votes.
52.
Allwright, 321 U.S. at 665.
53.
Id. at 665 n.10.
54.
See Payne, 501 U.S. at 828 n.1.
55.
Citizens United, 130 S. Ct. at 938 (Stevens, J., dissenting).
56.
Id. at 938 (quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 864 (1992)).
57.
This second map also introduces dotted arrows to connect opinions despite the lack of a formal citation relationship. I use dotted arrows to assert that the opinions are nonetheless connected and form part of the same tradition. Specific justifications for these dotted arrows are provided below in discussions of the particular opinions.
58.
467 U.S. 203 (1984).
59.
See note 46 above.
60.
505 U.S. 833 (1992). Casey was a five-to-four decision. No single opinion commanded a majority. Justices O’Connor, Kennedy, and Souter authored a joint plurality opinion. Justices Stevens and Blackmun wrote separate solo opinions concurring in part. Chief Justice Rehnquist and Justice Scalia both wrote dissents that each received four votes.
61.
See note 49 above.
62.
467 U.S. 203 (1984). Rumsey was a seven-to-two decision. Justice O’Connor wrote the majority opinion. Chief Justice Rehnquist wrote a dissent that received two votes.
63.
382 U.S. 111 (1965). Wickham was a six-to-three decision. Justice Harlan wrote the majority opinion. Justice Douglas dissented and his opinion received three votes.
64.
See note 50 above.
65.
See note 51 above.
66.
See Emery G. Lee III’s (2002) “Overruling Rhetoric: The Court’s New Approach to Stare Decisis in Constitutional Cases,” tracing the origin of “special justification” to Rumsey.
67.
Rumsey, 467 U.S. at 212.
68.
Wickham, 382 U.S. at 116 (overruling Kesler v. Dep’t of Public Safety, 369 U.S. 153 (1962)) (internal footnotes and citations omitted).
69.
Allwright, 321 U.S. at 665 (overruling Grovey v. Townsend, 295 U.S. 45 (1935)).
70.
See Booth v. Maryland, 482 U.S. 496 (1987); South Carolina v. Gathers, 490 U.S. 805 (1989).
71.
Payne, 501 U.S. at 828 (emphasis in original).
72.
Id. at 829.
73.
Id. at 845 (Marshall, J., dissenting) (emphasis in original).
74.
Id. at 848–49 (Marshall, J., dissenting) (quoting Rumsey).
75.
Id. at 834 (Scalia, J., concurring).
76.
Id. at 842 (Souter, J., concurring).
77.
For the only other invocations of Rumsey, see Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989), and Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 557 (1985) (Powell, J., dissenting).
78.
501 U.S. at 851 (Marshall, J., dissenting) (emphasis in original).
79.
Id. (emphasis in original).
80.
See Agostini v. Felton, 521 U.S. 203 (1997) (overruling Aguilar v. Felton, 473 U.S. 402 (1985)); Adarand Constructors v. Pena, 515 U.S. 200 (1995) (overruling Metro Broadcasting v. F.C.C., 497 U.S. 547 (1990)); United States v. Dixon, 509 U.S. 688 (1993) (overruling Grady v. Corbin, 495 U.S. 508 (1990)).
81.
See Casey, 505 U.S. at 853 (emphasis in original).
82.
Id. at 844–45.
83.
See Casey, 505 U.S. at 955 (Rehnquist, C.J., dissenting) (emphasis in original).
84.
Id. at 982–83 (Scalia, J., dissenting).
85.
Figure 2.3 does not include all opinions from the weak stare decisis tradition. See, for example, Casey, 505 U.S. at 955 (Rehnquist, C.J., dissenting), and Vasquez v. Hillery, 474 U.S. 254, 269 (1986) (Powell, J., dissenting). For other affirmations of the strong stare decisis perspective, see Dickerson v. United States, 530 U.S. 428 (2000) (affirming Miranda v. Arizona, 384 U.S. 436 (1966)); Patterson v. McLean Credit Union, 491 U.S. 164 (1989) (affirming Runyon v. McCrary, 427 U.S. 1960 (1976)); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 557 (1985) (Powell, J., dissenting). Dickerson was interesting at the time because Chief Justice Rehnquist—a proponent of the weak stare decisis school in Payne and Casey—wrote the majority opinion. However, its enduring appeal seems limited, as no Justice cited it in Citizens United.
86.
Smith v. Turner, 48 U.S. 283, 364 (1849) (argument of counsel).
87.
Cadawalader v. Wannamaker, 149 U.S. 541, 547 (1893) (Brewer, J., dissenting). The Casey plurality made an essentially similar point almost a century after Brewer’s pronouncement when they controversially argued that the Court’s legitimacy required it to follow precedent in the face of political pressure. See Casey, 505 U.S. at 865–66 (“The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make.”).
88.
Citizens United, 130 S. Ct. at 941–2 (Stevens, J. dissenting).
89.
Id. at 903 (citing Austin, 494 U.S. at 695 (Kennedy, J., dissenting)).
90.
See Montejo, 129 S. Ct. at 2091 (overruling Michigan v. Jackson, 475 U.S. 625 (1986)). See also id. at 2087 (citing Jackson, 475 U.S. at 1404 (Rehnquist, CJ., dissenting)).
91.
See Payne, 501 U.S. at 830, 825 (citing Booth, 482 U.S. at 517 (White, J., dissenting)).
92.
Payne, 501 U.S. at 833 (Scalia, J., concurring).
93.
Id. (quoting Guardians Ass’n. v. Civil Service Comm’n of New York City, 463 U.S. 582, 618 (1983) (Marshall, J., dissenting)) (internal citation omitted).
94.
See Dickerson v. United States, 530 U.S. 428, 443 (2000) (“Whether or not we would agree with Miranda’s reasoning … in the first instance, the principles of stare decisis weigh heavily against overruling it now.”)
95.
Id. (quoting Mitchell v. United States, 526 U.S. 314, 331 (1999) (Scalia, J., dissenting)).
96.
Some exceptions are depicted in Fig. 2.1 (Sect. 2.3.1 above) and discussed in the accompanying text.
97.
Aristotle’s term for this kind of rhetorical mode was topoi—topics of invention (2007).

References

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School of Law, University of Baltimore, 1420 North Charles St., Baltimore, MD, 21201, USA
Colin Starger

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School of Law, University of Baltimore, Baltimore, Maryland, USA
Christopher J. Peters

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Starger, C. (2013). The Dialectic of Stare Decisis Doctrine. In: Peters, C. (eds) Precedent in the United States Supreme Court. Ius Gentium: Comparative Perspectives on Law and Justice, vol 33. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7951-8_2

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DOI: https://doi.org/10.1007/978-94-007-7951-8_2
Published: 14 December 2013
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