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91 Tex. L. Rev. 1711 (2012-2013)


This Article, a contribution to a symposium on constitutional foundations, maintains that an unappreciated function of stare decisis is that of referee between competing visions of the Constitution. Stare decisis is styled as a doctrine of error-correction, but in controversial cases, "error" is often a stand-in for disagreement about first principles. In these cases, stare decisis functions less to guide the business of correcting mistakes — a conception that oversimplifies the reality of pluralism on the Court — than to mediate intense disputes about the Court’s role in interpreting the Constitution. Identifying this function of stare decisis offers a different perspective on the values served by the Court’s traditionally weak presumption against overruling constitutional precedent. Insofar as it avoids entrenching particular resolutions to methodological controversies, weak stare decisis reflects respect for pluralism on and off the Court, as well as realism about the likelihood that justices will lightly let go of their deeply held interpretive commitments. At the same time, the weak presumption does not abandon all constraint: placing the burden of justification on justices who would overrule disciplines jurisprudential disagreement lest it become too disruptive. While the ability to overrule comes at some cost to continuity, stare decisis is ill-suited to accomplish much more than this tempering function in the face of continuing disagreement about what the Constitution requires.

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