A Supreme Court Without Stare Decisis:

I sometimes come across arguments by lawyers or bloggers that the Supreme Court should not rely on the doctrine of stare decisis. (For nonlawyers, a rough definition of stare decisis is the practice of following prior court decisions unless there are very unusual circumstances.) The argument against stare decisis is a simple one: It’s the Supreme Court’s job to get it right, and the Justices can’t get it right if they follow past decisions that may have gotten it wrong. As a result, the Supreme Court should always try to get it right, and it should only follow past cases to the extent the current Justices think the old decisions are correct. The goal should be loyalty to the Constitution, not loyalty to old cases by old courts.

  This argument has some surface appeal, but I’m curious what a Supreme Court without stare decisis would look like. The problem is that most legal disputes are built on and framed by the precedents of dozens of previously decided disputes, and they only make sense in the context of those decisions. It seems to me that a world in which there was really no stare decisis at the Supreme Court, and every decision was reached de novo, with no deference to prior decisions, would be a serious mess. It would be sort of like a world without language: There would be no common ground to understand and frame legal disputes or to establish basic rules of the road.

  Perhaps the best way to see this is with a simple example. Imagine a police officer pulls over a car for having a broken taillight. The driver looks very nervous, so the officer orders the suspect out of the car. The officer sees a bulge in the suspect’s jacket that looks like a gun, so he frisks the man and finds a loaded pistol. A bit of research reveals that the driver is a felon, leading to charges for being a felon in possession of a weapon. The defendant files a motion to suppress, and the issue before the U.S. Supreme Court is whether the evidence should be suppressed.

  How should the Justices rule? In a world without stare decisis, all nine of them need to start from scratch. They each need to answer the following questions, among others:

1) Does the Fourth Amendment confer a personal right?
2) If the answer to (1) is yes, does the Fourth Amendment apply outside the warrant context?
3) If the answer to (1) and (2) are yes, does the Fourth Amendment apply (either directly or through incorporation) to a state police officer?
4) If the answer to (1), (2), and (3) are yes, does the scenario described above reveal any searches or seizures? (And implicitly, what is a search? What is a seizure?)
5) If the answer to (1), (2), (3), and (4) are yes, what makes a search or seizure reasonable or unreasonable? Does a police officer have the power to pull over a car for a taillight violation? Does a police officer have the power to order a suspect out of the car? Does he have the power to frisk a suspect for weapons? Did any of these violate the Fourth Amendment?
6) What is the remedy for a violation of the Fourth Amendment, and how does it apply here? Is there a suppression remedy? Is there a fruit of the poisonous tree doctrine?

  In a world with no stare decisis, each of the nine Justices would have to start from scratch in each case. Presumably there would need to be briefing and argument on all of these issues. Even if the Justices agreed as to a result, they would likely divide as to the rationale in every case. The emerging rule of law would often be unclear if not nonexistent.

  Further, even if the Justices reached a majority rationale, it’s unclear that this would matter. After all, the recognized legal significance of a majority rationale from the Supreme Court is itself a matter of stare decisis, which would have no weight. In the extreme version where there is no stare decisis at all, every Supreme Court case would be a shot to entirely reinvent everything about the law. Nor would the Justices have to comply with legal niceties we know of like the case or controversy requirement, standing, etc., unless they personally agreed with them and their application, as these doctrines are routinely followed today largely as a matter of (you guessed it) stare decisis.

  You could imagine a much less extreme version of a world without stare decisis, to be sure. Perhaps the Supreme Court could only grant certiorari on very limited questions, explicitly keeping all else fixed. For example, in the Fourth Amendment case above, the Court could grant certiorari and decide only one of the very discrete questions listed above, leaving all the rest for another day. But if you really oppose stare decisis, I would think this is a terribly unsatisfactory answer: It’s just stare decisis masquerading as cert jurisdiction. Stare decisis would apply de facto to every issue that the Supreme Court did not specifically agree to review, because the lower courts would still be bound by whatever the Supreme Court didn’t agree to review.

  Of course, this doesn’t mean that stare decisis is invariably a good thing. Lots of people have different views about when and where the Supreme Court should rely on it, and my argument here isn’t addressed to those judgments. My point is narrower. In my view, the debate should be on how much and how strongly the Supreme Court should rely on stare decisis, not whether it should be applied at all.

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