In the United States Supreme Court, the concept of stare decisis operates as both metadoctrine and doctrine. On the one hand, stare decisis functions as a generally applicable presumption in favor of adherence to precedent. This presumption is metadoctrinal because it provides a generic argument against overruling that applies independently of the substantive context of any given case. On the other hand, when the Court considers overruling a particularly controversial precedent, it usually weighs the constraining force of stare decisis by invoking factors and tests announced in its own prior caselaw. In other words, the Court has precedent about when to follow its precedent. This “precedent about precedent” seems doctrinal in the conventional sense – it is the Court’s doctrine of stare decisis.
The existence of a stand-alone stare decisis doctrine in the Supreme Court was hardly inevitable. The Constitution does not mention precedent at all and thus provides no textual guidance about when stare decisis should be respected. Perhaps predictably, the Court historically decided overruling questions on a case-by-case basis without any reference to “precedent about precedent.” Prior to the early twentieth century, if Court opinions discussed stare decisis at all, they typically referred to the concept as a “maxim” or “principle” that abstractly weighed in favor of following past decisions. Though the maxim commanded respect, its authority and meaning were derived from common law tradition rather than from prior Court pronouncements.
Not so today. Now major overruling debates on the Court inevitably involve citation to past precedent about precedent. Moreover, this doctrine of stare decisis is itself contested. Justices dispute which of their prior opinions state the proper test for overruling precedent. How did this happen? How did stare decisis transform from a common law maxim into a doctrinal dialectic? And does the Court’s contemporary “precedent about precedent” have genuine precedential value? This Chapter – my contribution to a forthcoming book entitled Precedent in the U.S. Supreme Court (Springer, edited by C.J. Peters) – seeks to answers these questions.
The Chapter proceeds in three parts. Part I surveys the early era of the Court’s precedent jurisprudence, which extends from the Founding up until Justice Brandeis’ landmark dissent in 1932’s Burnet v. Coronado Oil & Gas Co. Prior to Brandeis’ turn on the Court, abstract stare decisis discussions played almost no doctrinal role in Court debates about overruling precedent. However, Brandeis’ Coronado Oil dissent catalogued the Court’s actual overruling practices in such a powerful manner that his attendant stare decisis analysis immediately assumed canonical authority. After Brandeis, overruling debates invariably appealed to Court emerging doctrine on stare decisis.
Part II analyzes the evolution of Court discourse from Coronado Oil until the current day. Through the use of graphical “opinion maps,” this part illustrates how modern stare decisis doctrine became a dialectic – pitting competing lines of opinions against each other. Although both lines ultimately trace back to Brandeis’ Coronado Oil dissent, this part demonstrates how the contemporary conflict effectively emerged out of a key debate between Chief Justice Rehnquist and Justice Thurgood Marshall in 1991’s Payne v. Tennessee.
With the history mapped out, Part III takes a critical look at the competing claims in the contemporary stare decisis dialectic. By analyzing the arguments pressed by both sides in context, this final part considers whether the Court’s stare decisis doctrine has any genuine precedential value. It concludes that even though the doctrine’s actual constraint on Supreme Court decision-making is minimal, it retains real political and rhetorical significance.