Stare decisis, from the Latin meaning "to stand by that which is decided," is a judicial doctrine, which provides that precedent decisions are to be followed by the courts ('Lectric). The doctrine of stare decisis has developed in common-law legal systems, which enable judges to create law through judicial interpretation. In contrast, jurisdictions with a civil-law legal system reject the doctrine of stare decisis, because civil-law systems require a stricter separation between the legislative and judicial branches. The United States' legal system developed from a common-law base and embraces the doctrine of stare decisis.
Although the doctrine of stare decisis appears, at first blush, to give great power to the judicial branch, it is actually a judicial discretion constraining device. If the legislature is unhappy with a high court's interpretation of a law, it can change the law to reflect the actual legislative intent. However, if the legislature is content with a high court's interpretation of a law, it can permit the law to stand as written, knowing that all lower courts are bound by the high court's interpretation. The most well-known example of the ramifications of the doctrine of stare decisis being applied to a U.S. Supreme Court decision may be with the case of Roe v. Wade and the issue of abortion rights. Although many states had outlawed abortion at the time of the decision and have attempted to criminalize it since that time, unless or until the decision in Roe v. Wade is completely overruled, states will be unable to criminalize early-term abortions. The Roe V. Wade decision is a prime example of how stare decisis constrains judicial discretion because other judges may disagree with the Roe court's decision that a woman's right to privacy governs the issue of abortion.
The principle of stare decisis actually contains two separate components. The first component is that a decision by a higher court is binding precedent upon a lower court (Wikipedia). However, because the United States has a bifurcated legal system, which gives states the right to interpret their own laws, the doctrine of stare decisis is also bifurcated. For example, a state court is bound by the U.S. Supreme Court's interpretation of federal law, but not by a decision in a federal district or circuit court. Furthermore, on issues of state law, federal courts are bound by the interpretation of that state's court of last resort, and sometimes by decisions of state intermediate courts (Wikipedia).
The second component of the doctrine of stare decisis is that a court should not overturn its own precedents unless there is a compelling reason to do so. Furthermore, courts should be guided by decisions from lower courts and lateral courts. The second component of stare decisis is advisory and permits courts to overrule both the decisions of lower courts and prior decisions by the same court.
In fact, even though stare decisis dictates that courts are to give the value of precedent to the decisions of prior courts, there have been many cases where courts have found it necessary to overrule prior decisions. In fact, some of the most dramatic social changes in American life in the past 100 years can be attributed to the unwillingness of a particular court to follow previous decisions. An example of such a decision is when the U.S. Supreme Court overruled Plessy v. Ferguson in the landmark Brown v. Board of Education decision. However, the decision in Brown was only possible because the attorneys in that case provided evidence that the facilities were not equal and that the actual separation of facilities permitted under Plessy was a contributing factor to the inequality. Without such a demonstration it is unlikely that the court would have overruled its precedent. Had that been the case, civil rights in the United States might still be stuck in the Jim Crow era.
Given that the doctrine of stare decisis gives the same value of precedent to both good and bad decisions, it is easy to understand why there are vocal opponents and proponents of the doctrine. Proponents of stare decisis argue that the doctrine promotes equality, efficiency, uniformity, and predictability in the legal system. Opponents of stare decisis argue that the doctrine blurs the line between the legislative and judicial branches by permitting judges to make law. Opponents further argue that the doctrine hampers and prohibits the law from reflecting changes in society.
Proponents of stare decisis made bold and sweeping claims about the role of stare decisis in a just society. They state that "if justice is to be dispensed even-handedly, similar cases must be decided similarly" (Non-Publication). Furthermore, they advocate stare decisis as a mechanism for quality control. These advocates maintain that stare decisis raises errors for discussion and correction, guarantees a consistent level of quality in both reasoning and the application of law, and guarantees that all judges will meet the standards of the most conscientious of their brethren (Non-Publication).
The proponents of stare decisis also warn that the erosion of stare decisis threatens chaos. The issuance of unpublished opinions by lower courts and some higher courts, which is accompanied by prohibitions against citing those decisions in future litigation, is one of the ways that advocates of stare decisis believe that the doctrine is being eroded. For example, the inability to cite prior cases deprives attorneys of the ability to reasonably predict the outcome of litigation, which, in turn, may increase the incidence of frivolous lawsuits and raise the price of litigation.
Opponents of stare decisis make the argument that the doctrine interferes with the system of checks and balances that has been established by having three separate branches in both the Federal and state governments. These opponents argue that the legislature is the only branch that has the ability to make law and that, by giving the value of precedent to high court decisions, the doctrine of stare decisis gives judges the ability to make law. These opponents believe that stare decisis improperly constrains judicial discretion by preventing individual judges from interpreting laws in the cases before them.
One area where the opponents of stare decisis are most vocal is when talking about the rapid adaptation of laws to reflect changes in society. To return to the example of Brown for a moment, had the NAACP not been able to provide actual evidence that the separate facilities provided for African-Americans were inferior to those provided to whites, it is questionable whether the court would have overturned the decision in Plessy. Both Plessy and Brown were interpretations of the Fourteenth Amendment, which did not expressly prohibit segregation. The decision in Roe is another area where opponents of stare decisis believe that courts have not been permitted to allow the realities of evolving medical technology and the repercussions on fetal viability to change their decisions in abortion-related litigation.
Max Radin, one early opponent of stare decisis, believed that "lawyers and judges are ... principally engaged in doing things they know to be irrational for no better reason than that they have seen some one else do them" (199). While Radin had a point, what he and many other opponents of stare decisis have failed to recognize is that:
Judicial power is by its nature retrospective; the Court applies law to factual circumstances that have already occurred. Erroneous precedents themselves are part of the factual backdrop against which the Court decides a current case. Thus, they are part of the 'facts on the ground' that properly influence the application of retrospective judicial power (Amar).
Because erroneous precedents are part of the factual background of a case, those precedents may limit the ability of a court to change course, even if convinced that the precedent is erroneous. Even if a precedent is erroneous, citizens have the right to rely on court decisions and make plans based on those decisions. The sudden overturning of precedent without a compelling reason would strip citizens of their right to rely on judicial interpretation and hamper action.
Another issue that opponents of stare decisis frequently fail to consider is that eliminating the doctrine would eliminate the effect of stare decisis on the good decisions as well as the bad. For example, although the decision in Brown came about because the Court refused to give the value of precedent to the decision in Plessy, the reality is also that "school desegregation would never have been accomplished, or probably even attempted, without a strong vertical stare decisis principle to keep recalcitrant lower judges in line (Mariner).
In fact, the main virtue of stare decisis may be its power to control lower court judges by limiting their discretion. As demonstrated in the 2004 election, the United States is populated by extremely diverse groups of people, some of whom hold diametrically opposed views on certain issues. Historically, one of those issues was segregation. Minority groups, in particular African-Americans, maintained that segregation violated their civil rights. In contrast, many whites maintained that forced integration violated their First Amendment right to free…