Thomas Healy


This Article joins the growing debate about the relationship between stare decisis and the Constitution by addressing four important questions that have recently been raised: (1) Is stare decisis constitutionally required? (2) Is stare decisis constitutionally prohibited? (3) Can Congress abrogate stare decisis? (4) Should courts defer to the judgments of elected officials when deciding whether to adhere to precedent? My answers to these questions (with some qualifications) are no, no, no, and sometimes. First, as I and several other writers have demonstrated, history does not support the claim that stare decisis is dictated by the Framers' understanding of “judicial power.” Second, stare decisis does not conflict with the Supremacy Clause because the Constitution does not preclude judges from deferring to the reasonable constitutional interpretations of other governmental actors, which is what stare decisis amounts to. Third, Congress cannot abrogate stare decisis because doing so would interfere with the power of courts to choose the methodology by which they determine what the law is, which in turn would undermine their ability to justify their decisions as legitimate. And fourth, courts should defer to the views of elected officials when deciding whether a prior decision has generated significant reliance or rests on outdated facts, but only where those views are based on the superior factfinding capabilities of the other branches. Courts should also give serious weight to the thoughtful and considered judgment of elected officials that a prior decision was egregiously wrong. But courts should not defer to the views of elected officials when deciding whether a prior decision is practically unworkable or a remnant of abandoned doctrine because these are quintessentially legal questions that judges are best equipped to answer. Reprinted by permission of the publisher.



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