Stare Decisis is Ridiculous

Imagine that you make a mistake, one you only find out about later. It could be anything—maybe you installed a new shelf sloppily, and only later noticed that it was tilted.  Or maybe your wife asks you to pick something up from the store, and it’s an hour before her words actually register. Do you act to fix your mistake, or do you decide to just live with an angry wife and useless shelf?

If you’re like most people, you act to fix the mistake, and the quicker the better (hopefully before the wife comes home and finds out that you never went to the store). But the Supreme Court’s often strict adherence to the principle of stare decisis—the power of binding precedent—is sometimes like seeing a mistake and willfully refusing to act to make it right. In the Court’s case, however, this refusal to act can over the long term actually hurt the constitutional foundations of the country.

This approach may be, as Justice Scalia once said in a different context, pure applesauce, but it is largely the way the Court has functioned for at least the past century. All courts are notoriously reluctant to overturn established precedent, but the Supreme Court has gained particular notoriety for its reluctance to overturn older decisions, even bad ones which a majority of justices are readily willing to admit are bad. It is one of a number of reasons the Court took more than fifty years to overturn the judicial endorsement of “separate but equal” facilities for blacks and whites (first articulated in the 1896 case of Plessy v. Ferguson, and not overturned until Brown v. Board of Education in 1954).

And if the justices do actually decide to overturn one of their prior rulings, every law student knows that they must be allowed to reach that conclusion on their own. Judges hate being told that they made a wrong decision, even if that fact is self-evident to everyone, including the judges themselves. The easiest way to win a case is to argue it within the framework of existing precedent, and allow the judge or judges in question to reach their own conclusions regarding precedent. Judges, and justices, hate being wrong, and they hate other people pointing out that they were wrong even more.

This is stupid. Nearly anyone with even minimal political engagement can think of some Supreme Court precedent that they believe should be overturned, and the arguments for some are more convincing than others (looking at you, Roe v. Wade). But beyond anyone’s ideological vendettas against certain cases, it’s just silly that the Supreme Court should be so resistant to overturning bad precedent, no matter the length of time elapsed. In fact, if that particular case has been on the books for a long period of time, and a wide range of people agree that it was a bad decision, even more reason for acting quickly, before it damages the country even more.

A rejection of the traditional judicial deference toward precedent is not lacking on the current Court—Justice Clarence Thomas has often argued for a less servile attitude toward past opinions. Hopefully more justices will join his more realistic attitude toward the Court’s work in the future, including Neil Gorsuch.