While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions, and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble v. United States provides the framework for each approach, a framework based on the genesis and development of stare decisis from its English common- law roots.
Specifically, this Note argues that even if the Supreme Court does not accept Justice Thomas’s approach, state supreme courts should when deciding state statutory and constitutional questions. The distinct nature of state constitutions, the state legislative process, and state legislative power in general call for a textually grounded approach to stare decisis of the kind Justice Thomas proposed in his Gamble concurrence. Conversely, this Note argues that state supreme courts should adhere to traditional stare decisis formulations when resolving common-law disputes because the doctrine of stare decisis itself developed at common law and has greater legal and practical significance in the common-law context.
The analysis proceeds as follows. Part I explores the doctrine of stare decisis by reviewing the Supreme Court’s recent decision in Gamble, its application of stare decisis in that case, and Justice Thomas’s concurrence. Part II highlights some basic differences between federal and state courts and explores the state court doctrine of methodological stare decisis as a way to promote consistent treatment of precedent at the state court level. Finally, Part III encourages state supreme courts to adopt Justice Thomas’s text-based theory of stare decisis for questions of state constitutional and statutory interpretation but proposes an approach that is informed by but not beholden to the one advanced by Justice Thomas when state supreme courts employ stare decisis in their common-law capacities.
Zachary B. Pohlman,
Stare Decisis and the Supreme Court(s): What States Can Learn from Gamble,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol95/iss4/11