Posted by Orin Kerr:
A Supreme Court Without Stare Decisis:
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250479808
I sometimes come across arguments by lawyers or bloggers that the
Supreme Court should not rely on the doctrine of [1]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 loyal
to the Constitution, not 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.
Now would the Justices have to comply with legal niceties we know of
like the case or controversy requirement, standing, etc., unless they
felt like it, 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.
References
1. http://en.wikipedia.org/wiki/Stare_decisis
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