Kermit Roosevelt III (University of Pennsylvania Law School) has posted Polyphonic Stare Decisis: Listening to Non-Article III Actors (Notre Dame Law Review, Vol. 83, 2008) on SSRN. Here is the abstract:
This article explores the input that non-Article III actors can and should have in the Supreme Court's decision to reconsider a prior constitutional decision. It employs a model of constitutional decision-making that distinguishes between the articulation of constitutional meaning and the construction of constitutional doctrine to identify several different stages at which a court can adhere to or depart from precedent and examines the persuasive power of non-Article III input at each stage.
And from the text:
One answer might be that the Constitution does in fact require some form of stare decisis (which would imply the unconstitutionality of legislation abrogating stare decisis, though not that of legislation prescribing some particular form). Paulsen rejects this view on the ground that the Constitution says nothing about the practice and the Court’s frequent observations that stare decisis is “not an inexorable command” “illustrate the sub-constitutional, policy-based nature of the doctrine.”23 But to say that courts are not always required to adhere to precedent (“stare decisis is not an inexorable command”) is not to say that they can do without stare decisis entirely. The possibility remains that the Constitution requires some form of respect for precedent, although that form does not require adherence in every case. To put the assertion in constitutional language, it may be in the nature of the “judicial power” (and one of the things that distinguishes it from the legislative) that departures from precedent require some justification. On this view, precedent must have some force.
Indeed, if one looks at what the Supreme Court has said about precedent, there are many statements to this effect. Perhaps the best evidence comes from the Court’s struggles with the question of retroactivity: what to do when a judicial decision changes the law. At one point, the Court adopted a solution whereby it would announce a new rule in one case but then not apply that rule to cases pending on direct review in which the relevant events (typically a state-court conviction) occurred before the law-changing decision.24 But in Harper v. Virginia Department of Taxation,25 the Court pronounced this “selective prospectivity” unconstitutional, stating that “the nature of judicial review” barred the Court from holding that its decision in one case should have no effect on other similarly situated cases.
Highly recommended.
