Abstract
This chapter contends that there are significant systemic obstacles to determining whether the Supreme Court actually adheres to stare decisis. Political-science research suggests that precedent exerts relatively little constraint on the Court’s decisionmaking. The author contends that this research is unreliable, however, because of the selection effect: A strong norm of stare decisis, if it existed, would allow only the closest cases—those where precedent is least constraining—to reach the Court in the first place. Whether the selection effect actually operates in this way, however, depends on whether litigants, lawyers, and lower-court judges believe the Court applies stare decisis. And whether the Court does so is precisely what the empirical studies cannot reveal. As things stand, then, there is no reliable way to know whether the Court really follows precedent. The Court could fill this information gap by conspicuously reaffirming decisions known to be opposed by a majority of Justices, but it rarely has done so. This failure, more than any empirical research, suggests that the Court does not in fact accord much weight to precedent.
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Notes
- 1.
- 2.
Except, of course, to the extent that so-called apex courts craft their opinions and establish rules in light of how they expect courts below them to understand and interpret those rules on future occasions.
- 3.
The statement in the text is slightly too simple. A judge may have more or less confidence in her agreement with a prior decision, and agreement may thus be better understood in scalar rather than bimodal terms. And to the extent that this is the case, then internalization (in Hart’s (2012) sense) of a norm of stare decisis may supplement agreement with the earlier decision, producing greater confidence in the outcome than would have existed absent the stare decisis norm.
- 4.
As noted above in note 3, the fact that the obligations of stare decisis are typically understood as short of absolute makes the statement in the text—that stare decisis is interesting or important only when a judge disagrees with the prior decision—a somewhat misleading overstatement. A judge’s agreement with a prior decision may be relatively weaker or stronger, and a judge who weakly agrees with a previous decision might have a stronger reason to follow it because of the additional reason of stare decisis than she would have were no such additional reason to be present.
- 5.
- 6.
Ken Foskett quotes Justice Scalia as saying that Justice Thomas “does not believe in stare decisis, period” (2004, 281–82) (emphasis in original).
- 7.
For example, see Dworkin (2007), complaining that the fourth in a line of Supreme Court cases on student speech, Morse v. Frederick, 551 U.S. 393 (2007), failed to follow the precedent of the first case, Tinker v. Des Moines Indep. School Dist., 393 U.S. 503 (1969)—even though the second and third cases in the same line (Bethel School Dist. v. Fraser, 478 U.S. 675 (1986), and Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988)) had ruled against students and in favor of restrictions and thus seemed consistent with Morse.
- 8.
The most-explicit arguments against stare decisis in constitutional law come from the political right. See, for example, Paulsen (2005), Lawson (1994), and Cooper (1988). But the systematic rejection of precedential constraint by the (liberal) Warren Court has also been well documented. See Maltz (1980); see also Guardians Ass’n v. Civil Service Comm’n, 463 U.S. 582, 618 (1983) (Marshall, J., dissenting) (rejecting the idea that stare decisis should stand in the way of sound substantive principle).
- 9.
The statements of the Justices, whether in opinions or extrajudicial, are particularly unhelpful, because the overwhelming number of claims of reliance on precedent are made by Justices in support of outcomes they believe substantively correct. Far more rare but nevertheless more telling are the opinions or votes of Justices known to disagree with the first-order merits of a position that they are, for second-order reasons of stare decisis, supporting. See Schauer (2007); see also Kelman (1985). And for the argument that stare decisis may have indirect effects that are harder to measure but may be more consequential, see Fallon (2001).
- 10.
- 11.
- 12.
“Rationalization” was the term of choice for many of the Legal Realists in arguing that judges typically or often first reached a result on largely non-legal grounds and only thereafter sought to explain, justify, or rationalize that law-independent outcome choice on legal grounds. See Frank (1930) and Hutcheson (1928–1929). On this aspect of and understanding of Legal Realism, see Schauer (2013).
- 13.
The judicial opinion as an ex post rationalization of decisions reached on other grounds is also one of the principal themes in Frank (1930). See also Stumberg (1939, 532); Cohen (1935, 809–12); Cohen (1933, 237); Frank (1933, 910–11); and Llewellyn (1931, 1238–39). Note also the comment attributed to Chief Justice Hughes by Justice Douglas that “[a]t the constitutional level where we work, 90 % of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections” (Douglas 1980, 8). And on the distinction between the logic of decision and the logic of justification, a distinction that provides some philosophical support for the rationality of the Realists’ less philosophical observations, see Wasserstrom (1961).
- 14.
- 15.
See Lax and Rader (2010).
- 16.
See Hathaway (2001). Path dependence will certainly make otherwise counterfactually eligible results impossible or undiscoverable, but this is a different phenomenon from that of a judge who actually sees a possible result and feels constrained by a stare decisis norm from reaching it.
- 17.
- 18.
- 19.
On the often-ignored distinction between precedential and analogical reasoning, see Schauer (2008).
- 20.
410 U.S. 113 (1973).
- 21.
In the Court’s 2010 Term, for example, it considered 7,868 petitions for certiorari or other form of review, granted review in 90 of those cases, and ultimately decided 75 with full signed opinions and after briefing and argument. See The Statistics (2011, 369). In the 2011 Term, a total of 7,685 petitions was considered, and again there were 75 final dispositions with full signed opinions after briefing and oral argument (The Statistics 2012).
- 22.
The scholarship on the selection effect is vast, the canonical modern source being George L. Priest & Benjamin Klein’s “The Selection of Disputes for Litigation” (1984). The Priest and Klein hypothesis about the nature of the disputes that are settled or litigated has spawned a substantial literature, much of it focused on challenging or supporting Priest and Klein’s claim that the selection effect will incline towards a 50 % win rate for plaintiffs in the cases that do not settle and thus wind up being tried to judgment. See, for example, Revesz (2000), Shavell (1996), Kessler et al. (1996), Waldfogel (1995), Hilton (1993), Eisenberg (1990), Wittman (1985), Priest (1985), and Bebchuk (1984). That question is theoretically and empirically important, but for purposes of this chapter all that is needed is the core insight that the cases that go to trial are a non-random and disproportionately indeterminate sample of legal events. On this basic point, useful analyses include Taha (2010), Kastellec and Lax (2008), Lederman (1999), Schauer (1988), and Posner (1986, Sect. 21).
- 23.
It is important to acknowledge that much of the force of the selection effect may not apply to many criminal cases. Because most criminal defendants and most habeas corpus petitioners proceed in forma pauperis and thus at no cost to themselves (even apart from the fact that the time expended on litigation may be a consumption item and not a cost for those who are incarcerated), the normal disincentives to pursue likely hopeless litigation, appeal, and post-conviction remedies will often be absent.
- 24.
See note 5 and accompanying text.
- 25.
- 26.
This need not be the case. Prior to the House of Lords’s Practice Statement of 1966, even the highest courts in Great Britain were prohibited from reversing their own precedents. See Practice Statement (Judicial Precedent), [1966] 1 W.L.R. 1234 (H.L.); see also Blom-Cooper (2009, 782). After 1966, however, there remain no courts in common-law jurisdictions that do not have the power to reverse precedents that they themselves have created, even though any meaningful norm of stare decisis will make such an action more difficult—will require a stronger justification than would have been necessary to reach the same outcome in the absence of the earlier decision.
- 27.
Dickerson v. United States, 530 U.S. 428 (2000), might be such a case, although judicial supremacy issues make the case a far from perfect example.
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Schauer, F. (2013). Stare Decisis and the Selection Effect. In: Peters, C. (eds) Precedent in the United States Supreme Court. Ius Gentium: Comparative Perspectives on Law and Justice, vol 33. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7951-8_7
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