A prior post discussed stare decisis in the context of recent suggestions that the U.S. Supreme Court should establish a new and different interpretation of the constitutional limits on federal and state regulation of economic activities. Another post summarized arguments why there should be no such changes and why the Affordable Care Act was constitutional.
Here we examine in greater detail the U.S. doctrine of stare decisisas it relates to the forthcoming Supreme Court decision on the Affordable Care Act.
The Doctrine of Stare Decisis
As stated by Geoffrey Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago (my alma mater), “Stare decisis is . . . the bedrock principle of the rule of law, to decide cases based on principle rather than on a preference for one or another of the parties before them, but it also serves importantly to reduce the politicization of the Court. It moderates ideological swings and preserves both the appearance and the reality that the Supreme Court is truly a legal rather than a political institution.”
I would add that the doctrine also assists in providing equal treatment for those similarly situated. If, for example, John Doe is held liable to Susan Smith for doing something to her, then Richard Roe should be held liable for doing the same thing to Janet Jones. This is a very important part of the rule of law.
Indeed, Chief Justice Roberts in a concurring opinion in the infamous Citizens United v. Federal Election Commission case from 2010, said, “Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function. Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”
Part of what law students learn in law school and what practicing lawyers do in their lawyerly work is how to identify and articulate the holdings of cases and how to make legitimate distinctions between cases. That is all part of the doctrine of stare decisis.
Exceptions to the Doctrine of Stare Decisis
As Chief Justice John Roberts, however, said in his concurring opinion in Citizens United, stare decisis is not an “inexorable command” or a “mechanical formula of adherence to the latest decision.” Yet the Supreme Court has “long recognized that departures from precedent are inappropriate in the absence of a ‘special justification.'”
The Court in considering a potential departure from stare decisis must first conclude that a prior decision or decisions were erroneous. Roberts added, “When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.”
Quoting former Supreme court Associate Justice Robert H. Jackson (1941-1954), Roberts said that such a balancing requires a “sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other.” Roberts went on, “in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal [of the rule of law] than to advance it, we must be more willing to depart from that precedent.”
One example of a justified overruling of a prior decision is when “the precedent under consideration itself departed from the Court’s [prior] jurisprudence.” Another example, said Roberts, is when ” adherence to a precedent actually impedes the stable and orderly adjudication of future cases. . . such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.”
In the Citizens United concurring opinion, Roberts specifically cited three instances of the Supreme Court’s properly departing from stare decisis and overruling prior cases: (1) Brown v. Board of Education‘s overruling of Plessy v. Ferguson and holding school racial segregation unconstitutional; (2) Katz v. United States’ overruling of Olmstead v. United States and holding wiretapping of criminal suspects without a search warrant unconstitutional; and (3) the previously mentioned West Coast Hotel Co. v. Parrish‘s overruling of Adkins v. Children’s Hospital of D.C. and holding minimum wage laws to be constitutional.
Conclusion
Given the valid and important reasons behind the doctrine of stare decisis and the weighty burden that should be met by any court’s overruling prior precedents, even as expressed by Chief Justice Roberts, the Supreme Court, in my opinion, should adhere to the 75-year deep body of law interpreting the Constitutional limits on economic regulation and uphold the constitutionality of the Affordable Care Act.
This apparently was the view of the Obama Administration at the time of the adoption of the Act and at the start of the various lawsuits challenging that statute. As a New York Times article today states, “Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents.”
If a divided Supreme Court this week does change the interpretation of the constitutional limits on congressional power to regulate interstate commerce, it will indeed be radical.
In reaction to such a possibility, Jonathan Turley, Professor at George Washington University Law School, has suggested that the number of Supreme Court justices be increased from its current nine to 19. In his opinion, “Our highest court is so small that the views of individual justices have a distorting and idiosyncratic effect on our laws.”
Turley points out that the number of justices is not set in our Constitution and that nine was happenstance. He also says many developed countries have larger top courts: Germany (16), Japan (15), United Kingdom (12) and Israel (15). France (124) and Spain (74) have significantly more judges on their top courts, but those courts have structural differences from ours. All of these courts, however, “eliminate the [U.S.] concentration-of-power problem.” Turley suggests 19 for the U.S. as the average size of our federal appellate courts.
Turley’s suggestion echoes my prior criticism of our Constitution as antiquated and “imbecilic” in other respects, including life tenure for federal judges.
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On the contrary, binding stare decisis is logically incompatible with the Constitution being the supreme law of the land. It is incompatible with it, and no one who claims fidelity to the Constitution can honorably embrace it. See my link for further discussion.
Mr. Roland, I have examined your linked discussion of stare decisis–http:constitution.org/col/0610staredrift.htm. You obviously are very interested in the topic of stare decisis and raise many interesting points. But I do not agree that stare decisis is incompatible with the Constitution, and your article does not cause me to revise my discussion of this doctrine in this post.
Perhaps a further explanation is needed of what I mean by incompatible. The written Constitution establishes a system of formal propositions of deontic logic, as major premises, which, when combined with propositions about factual situations to which they may be applied, as minor premises, yields inferences that can take the form of court decisions. As long as courts tether their decisions to evidence and logic of original meaning of the constitutional major premises, they should be able to avoid straying too far from competent exegesis. However, as soon as courts make decisions not on the basis of the original constitutional major premises, but on prior court decisions, regardless of whether they are correct inferences, it is introducing new major premises, and a different formal system. If even a single such new major premise is contradictory to a major constitutional premise, and the court attempts to combine them into a single system, then that combined system allows all contradictions, and every proposition becomes both “true” and “false” at the same time. It other words, it becomes impossible to uniquely assign boolean truth values to any of the propositions, and any court using such a combined system is no longer bound to the Constitution, but can make any decision it chooses, on a whim. That is not the rule of law, but of men. It is not what the people demand of a justice system they can respect.
Let’s examine the history of binding stare decisis, as distinguished from persuasive stare decisis. It arose in the English common law system in which most law was made by judges pretending to be finding “natural law” of justice in their decisions, for a legal order in which the sovereign, or supreme lawmaker, was a monarch. When the American states declared and won independence, they made the people sovereign, and when they adopted written constitutions of government, they rejected the parts of their common law tradition incompatible with those constitutions, although their constitutions adopted the nonconflicting parts, including the rules of interpretation. That did not include binding stare decisis, which allows logical contradictions to written constitutions, and if adopted, would make court decisions and not the written constitution the supreme law.
If you want to explore how binding stare decisis can go wrong, just trace the line of decisions on the Commerce and Necessary and Proper clauses, from McCulloch v. Maryland through Wickard v. Filburn through Gonzales v. Raich, which have licensed the federal government to exercise virtual police powers and erect the administrative state. There is no way the Constitution would have been ratified if that growth had been foreseen, without sharpening those clauses to preclude such interpretations. I have proposed clarifying amendments to restore original understanding at http://amend-it.org
This present discussion seems to be occasioned by the impending decision in the health care case, in which supporters are appealing to precedent to sustain the PPACA. Sorry, but that act is unconstitutional, and not just in the ways its challengers have been arguing. The original meaning of “commerce” did not include services, such as medical care and insurance, and ‘carrying into execution” only meant the effort of performing official duties, not getting desired outcomes. See http://constitutionalism.blogspot.com/2012/02/what-commerce-meant-to-framers.html and http://constitutionalism.blogspot.com/2012/03/original-meaning-of-carrying-into.html