Challenging the Dubious Doctrine of Stare Decisis





Associate Justice of the Supreme Court Stephen Breyer wrote a dissenting opinion in mid-May, expressing his displeasure that a majority of his colleagues on the court overturned a four decades old precedent.

Breyer fretted, “Today’s decision can only cause one to wonder which cases the Court will overrule next.”

At issue is the doctrine of “stare decisis”, which holds that Supreme Court decisions should be allowed “to stand as decided” rather than be overturned.

Without arguing the merits of any particular case, the notion that a Supreme Court decision is sacrosanct and irreversible is indefensible on logical grounds and highly problematical on pragmatic grounds in our democratic system…

Why shouldn’t the Supreme Court be free to reverse decisions rendered by earlier courts? It makes a mockery of the ideal of having three coequal branches of government, when the policies of two of them may be undone while the third branch’s rulings are permanently binding.

To assert that a Supreme Court decision can’t be undone implies some sort of judicial infallibility…

Accepting stare decisis as an inviolable principle essentially elevates a Supreme Court majority to the level of a secular papacy endowed with infallibility. This repudiates the democratic nature of the U.S. system, especially since Supreme Court justices, like the pope, are neither elected by the people nor accountable to them, but have lifetime tenure.

Today’s proponents of stare decisis are making a power play. They assert stare decisis as an unchallengeable tenet—a dogmatic orthodoxy to be defended from pesky heretics—in the attempt to delegitimize any move to overturn Supreme Court precedents.

That attitude is arrogant and illiberal. It reminds me of the position struck by the Soviet leadership during the Cold War… There’s another similarity between the stare decisis dogmatists and communists: their distrust of the people and concomitant disdain for democracy.

The communist attitude toward democratic elections is one man, one vote, one time. Once communists have gained power, though, democracy goes out the window and they will oppress the people rather than submit to a democratic election that might reverse their gains. Likewise, stare decisis is invoked to thwart potential reversals.

The desire of stare decisis zealots to thwart legal reform contrasts strikingly with the humility of the founding generation. In his “Farewell Address,” President George Washington, understanding that laws are written by fallible human beings, explicitly rejected any attempt to impose irrevocable constitutional shackles on future generations of Americans. On the contrary, he told the American people that they should amend the Constitution when needed to conform to new realities and understandings…

(O)ur precious common-law system is based on precedent, practical experience, and long held, widely accepted values. Overturning Supreme Court decisions willy-nilly would be disruptive, if not destructive of the stability and continuity that our common law system provides. But precedents must not be regarded as eternal truths written in stone.

Stare decisis must not be exalted as an absolute principle. It must not impose an inflexibility that is incompatible with a society in which there often are multiple (and changing) opinions about right and wrong.

The truth is that Breyer—and others now citing stare decisis—don’t really believe that it is a universally binding principle. After all, they themselves approve of certain past Supreme Court reversals of prior flawed court decisions.

Their current fervor for stare decisis is a matter of expediency. They hope to prevent the five non-Progressive justices on the court from overturning (other) such persistently controversial decisions…

As John Maynard Keynes once said, “When the facts change, I change my mind.”

Supreme Court justices shouldn’t be too proud to follow that advice. The opinions of five justices more than 40 years ago shouldn’t prevent today’s justices from re-examining their premises…

Such momentous decisions should be democratic rather than edicts issued by a minuscule elite.

Stare decisis—a spurious doctrine even in theory—should not be allowed to become an oppressive dogma in practice.




Stare Decisis is a poor excuse for judicial decisions. Was Dred Scott a good basis to preserve slavery? NO! There are many such decisions that could rightfully amended or overturned. I’d suggest multiple of the New Deal decisions were faulty, not to mention Roe vs Wade.


The practice invalidates the long term shifts in our democratic conclusions. The Progressive impetus has largely spent its usefulness. If fact, it has progressively become less of a solution, and more a creator of new problems, like Obamacare. Yet they yell all the louder, and push ever further from the bedrock principles of the Founding. 


We need to return to federalism to a greater degree, and allow the States to once again become the laboratories for governmental experiments. Rather than forcing a one-size-fits-all scheme on the disparate States and regions which don’t share the same issues.



Categories: General, Political

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11 replies

  1. Funny how Conservatives continue waiting for a broken system to “do the right thing”…I’ve got news for ya’, folks, the Constitution was predicted to fail from jump (see: Anti-Federalists) & has been irrelevant since Lincoln’s War. Keep voting for ‘Moderate’ Republicans, just like you have for the last 4-5 decades, and keep expecting a different result…


  2. Any decision should be subject to review, amendment, or reversal. Period!

    Yes, the tendency should be to grant the assumption of veracity, but only until legal principles are in conflict, then no holds barred!


  3. Brown v. Board of Education, Topeka?


    • Crawfish,

      I don’t think legislating segregated schools is the same as equal justice. Nor is the enforced integration of schools.

      Schools should represent their neighborhoods, and let the racial and economic nature of those neighborhoods dictate the populations of said schools.

      The rich can always elevate their kids into private academies. We don’t have to control for them.

      But first and foremost, all public schools should regiment the teaching of “The 3 Rs” as well as history and civics. From there shops and home economics come to mind, followed by arts, music, and phys ed..

      Liked by 1 person

      • But Brown established that “separate but equal” was okay. Stare decisis didn’t keep that decision on the books, even though now the blacks on college campuses want to go back to it

        Liked by 2 people

      • Yes, but enforced separation was the issue, since funding was equal. By enforcing segregation, they were abrogating equal justice.

        Now if a neighborhood was 100% any race, the school would be too, but it wouldn’t be dictated by the policy, but the neighborhood. Likewise if the neighborhood ratio was 70/30, so would the school population. Now the people are self-selecting their neighborhoods and schools.

        All schools would still need to be funded equally on a per/pupil basis.


  4. 1. Pack the courts with activist judges;
    2. Demand obedience to the unwritten rule that precedence is sacred.

    That’s the Democrats’ scheme for the SCOTUS under their “heads we win, tails you lose” philosophy of government.

    I think you’re right about federalism, Curtis. The more we centralize government the more intent Democrats are on politicizing/weaponizing the SCOTUS, and that is when we end up at this place where presidential elections are boiled down to who gets to pick the next supreme court justice.

    I was very disappointed watching the most recent nominees kowtow to leftists in congress who demanded that they swear allegiance to stare decisis. Prior decisions should be upheld and left intact only so long as they were consistent with the Constitution as written or as legally amended. Anything else should be fair game for overturning.

    Liked by 2 people

  5. The stupid is large in this one……


  6. “To assert that a Supreme Court decision can’t be undone implies some sort of judicial infallibility.”

    Exactly. Accepting stare decisis is basically saying they don’t make mistakes in any of their decisions, which we know is not true. Granted they know more law than most of us, but they’re still human beings complete with flaws and wrong thinking. John Roberts proved that with Obamacare. Breyer stands in disagreement with most conservatives on a multitude of issues, which means he’s also in disagreement with the Founders on many subjects.

    Liked by 2 people

  7. Interestingly enough, Breyer has questioned the legitimacy of the Heller decision, including in his dissent in the McDonald case.

    Are we to believe that, given the opportunity, he wouldn’t vote to overturn Heller? After all, stare decisis, right…?

    Liked by 2 people

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