Stare decisis and precedent in legal systems

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 association. Judges were drawn from these differing groups and could come up with opposing decisions, even while relying on the same Constitution to determine individual and group rights. Today, pro-choice groups argue that it violates a woman's Constitutional right to privacy to deny her abortion-on-demand. In contrast, pro-life groups argue that it argues a fetus's Constitutional right to life to provide abortion in demand. Given that approximately half of Americans self-identify as pro-life and approximately half self-identify as pro-choice, without stare decisis, there would be no consistency in abortion litigation. Furthermore, recent state legislation regarding homosexual marriage demonstrates how divided the country is on the issue of same-sex unions. Since the decision in Loving v. Virginia the U.S. Supreme Court has recommended marriage as a fundamental right. Furthermore, the U.S. Constitution expressly provides that states are to give full faith and credit to legal decisions and relationships created in other states. Therefore, the effects of stare decisis on the issue of same-sex marriage may be decisive in determine whether or not marriage will continue to be defined as the union between a man and a woman. Careful consideration of the views expressed by both the opponents and proponents of stare decisis and these hot-button issues lead one to the conclusion that stare decisis is an appropriate and useful tool in the U.S. Federal system of government.

A defense of the doctrine of stare decisis starts with an explanation of the Federal system of government. The Federal system provides for three different branches of government, each with separate powers. The Federal system gives the legislature the sole power to make law, but it reserves to the judicial branch the power to interpret existing law, including the United States Constitution. Under a Federal system of government, the legislature has the ability to change the Constitution to reflect changes in the mores or beliefs of the citizenry; however, to protect the rights of the minority from the whims of the majority, the founding fathers made Constitutional change a more difficult process than the enactment of ordinary legislation. Therefore, because the legislature, and ultimately the people who chose their legislators, have the ultimate power to determine laws and the Constitution, the doctrine of stare decisis does not give judges the power to create law, but instead constrains judges from interpreting law according to their whims. Furthermore, the doctrine of stare decisis ensures that the U.S. Supreme Court is the ultimate interpreter of legislative and Constitutional legal issues.

An examination of the issue of abortion rights demonstrates the important role that stare decisis plays in abortion legislation. When Roe was decided, medical science did not provide for fetal liability before the third trimester. Pro-life opponents of stare decisis argue that the U.S. Supreme Court should overrule the decision in Roe based on changing public attitudes against abortion-on-demand and advances in medical technology (Lessner). Pro-choice proponents of stare decisis argue that Roe establishes that a woman has a Constitutional right not to be forced to carry a child, and that such a right exists regardless of public attitude or any advances in medical technology short of those that would permit a fetus to develop wholly outside of a woman.

In reality, the doctrine of stare decisis and its application to Roe and subsequent abortion-rights decisions has been helpful to both sides in the abortion-rights debate. Since the decision in Roe, women choosing to have abortions during their first and second trimesters have been able to seek them. Pro-life people have also seen Roe provide certain protections to the unborn because it limited third-trimester abortions to those cases where an abortion was necessary to preserve maternal health. Without the doctrine of stare decisis, there are two opposing scenarios that would be possible. Only by examining those possibilities can one see how important the doctrine of stare decisis is in the uniform administration of justice.

If the decision in Roe did not have the value of precedent, a woman seeking a legal first-trimester abortion, could be prevented from obtaining an abortion by a pro-life judge's interpretation of the Constitution. That judge could determine that a fetus had a Constitutional right to life, which trumped the woman's right to privacy. Given the speed of the judicial system, that woman would be unable to obtain an abortion within the period of her pregnancy.

Furthermore, if the decision in Roe did not have the value of precedent, a doctor providing illegal third-trimester abortions could avoid criminal liability if his case appeared before a pro-choice judge. That judge could determine that Roe's trimester system was an artificial constraint, and that given medical advancements and fetal viability at four months there was no reason to differentiate between a four-month fetus and a nine-month fetus, and dismiss charges against the doctor. Even if the State appealed and the doctor was eventually convicted, he could commit an untold number of third-trimester abortions while awaiting review.

Obviously, given the two stated scenarios, both sides of the abortion-issue need the ability to rely on a judicial interpretation of constitutional law that expressly defines whether or not abortion is permissible. However, the doctrine of stare decisis is only one part of the American judicial system. Should the values and mores of the American people change in such a way to determine that abortion is inherently and always immoral and should therefore be illegal, the people have the ability to enact a Constitutional amendment, prohibiting abortions. Both sides of the issue shy away from the idea of a Constitutional amendment regarding abortions, the pro-life movement because it is difficult to amend the constitution and the pro-choice movement because it does not believe that Constitutional amendments should reflect moral values. However, the Federal system provides that the Constitution is the highest law of the land and for amendments to the Constitution. Furthermore, there is a historical basis for Constitutional amendments being based on the changing moral values of the American people. Momentarily revisiting the issue of segregation and equal rights, it was only through the enactment of the Thirteenth Amendments that American laws reflected a belief that slavery was inherently immoral and should therefore be illegal in the United States. Should the American people decide that abortion, like slavery, is inherently immoral and choose to amend the Constitution to reflect that changing ideal, and then the courts will be constrained by that new amendment. Until that time, the American people, both pro-life and pro-choice, have the right to rely on a consistent application of abortion law.

The issue of same-sex marriage also has people advocating for and against the application of the doctrine of stare decisis. Although the opponents of same-sex marriage are frequently pro-life, in regards to the issue of same-sex marriage, they are proponents of the doctrine of stare decisis. In Bowers v. Hardwick, the U.S. Supreme Court upheld Georgia's anti-sodomy law as it was applied to homosexual forms of sodomy. Proponents of same-sex marriage oppose the doctrine of stare decisis as applied to the Bowers line of case law.

However, in addition to the decision in Bowers, there is the decision in Loving v. Virginia, wherein the U.S. Supreme Court recognized marriage as a fundamental right. In Loving, the state of Virginia had attempted to outlaw mixed-race marriages. The Lovings were a mixed-race couple that was married outside of the state of Virginia and moved into the state. Virginia refused to recognize the marriage. The Court determined that Virginia did not have that right. Combined with the Full Faith and Credit Clause, the application of the doctrine of stare decisis would appear to indicate that if one state recognizes a homosexual couple's right to marry, other states are compelled to recognize that marriage, the Defense of Marriage Act notwithstanding.

The issue of same-sex marriage illustrates why stare decisis is an important method of judicial constraint. Because there are potentially conflicting U.S. Supreme Court decisions regarding the right of homosexuals to marry, it is clear that the Court is not the body that should make further determinations on the issue. When the decision in Loving was issued, portions of America did recognize mixed-race marriages and there was an existing Constitutional Amendment prohibiting discrimination on the basis of race. However, the Loving court probably was not able to anticipate that its decision may one day be applied to support a homosexual couple's right to wed. In contrast, at the time that Bowers was decided, gay rights was in its infancy and the decision of the Bowers court did not reflect a changing society that has grown less tolerant of discrimination on the basis of sexuality.

Just like the issue of abortion rights, the application of stare decisis in the area of gay rights mandates that the courts follow prior decisions to determine whether or not homosexual sexual relationships are illegal and whether discrimination against homosexual couples seeking to marry is legal. Because there is a conflict in those decisions, the doctrine of stare decisis helps indicate that there is a need for legislation that guides courts in their interpretation of legislation surrounding the areas of gay rights. As previously pointed out, one of the main functions of stare decisis is to help determine areas of the law that require further discussion, thought, and possibly legislation.

With a Federal system of government, the doctrine of stare decisis is necessary to ensure the equal administration of justice. Because the Constitution guarantees certain fundamental rights to all American citizens, it would be unjust, in fact illegal under the Equal Protection provisions of the Fourteenth Amendment, to allow a person's rights under the U.S. Constitution to be interpreted differently because of the state in which they happen to reside. In fact, huge ideological differences can exist between jurisdictions in the same state, and it is repugnant to the American ideal of fairness to allow location to determine a party's fundamental rights.