Balkinization: Another view of stare decisis

Another view of stare decisis

Mark Tushnet

Here's a different take on the stare decisis issue that Michael Paulsen addressed: If you've re-examined all the relevant legal materials and concluded that a prior decision was mistaken, you've missed the point (or at least one of the points) of stare decisis. Stare decisis conserves decision-making energy. In a large number of situations, someone who considers a legal question “from the ground up” will reach the same conclusion as those who have already considered that question. Rather than rethinking the question and coming to the same conclusion that everyone else has, the decision-maker can simply take what others have concluded as a predicate for the decision at hand. Stare decisis also encourages an appropriate humility in decision-makers about their own capacity to arrive at correct decisions. Suppose you think through a problem from the ground up and reach a conclusion, then observe that others have engaged in the same process and reached a different conclusion. You might then think it reasonable to reexamine your own reasoning – itself an expenditure of decision-making energy – to see whether your reasoning went off track somewhere. Stare decisis -- the practice of taking the very fact that someone before you reached a specific conclusion after examining all the legal materials as a strong reason for reaching the same conclusion -- stops you from wasting your time (overall -- that is, taking all cases into account, not just the one in front of you at the moment), and might make you appropriately humble about your own reasoning abilities.

Posted 9:51 AM by Mark Tushnet [link]

Comments:

This is a much more sensible way to think about stare decisis. Respect for precedent should cause any Justice to re-think the certainty of his/her conclusion and to remember that the life of the law has not been logic but experience.

# posted by

Mark Field : 11:19 AM

I think that this sort of cognitive delegation to earlier courts is consistent with Paulsen & Lawson's Marburian argument. A very similar argument, of course, can be made for deference to legislatures who pass legislation they think is constitutional. Why spend energy rethinking a constitutional question, if the legislature thinks it's constitutional?

This sort of argument can't justify Casey's approach to stare decisis, though, where the existence of controversy is a factor against rethinking an earlier decision. I agree that if "rethinking the question" would cause us to "com[e] to the same conclusion that everyone else has," then it makes less sense to spend our time. But when people like John Ely say, hey, I'm all in favor of legal abortion, but this reasoning in Roe is just plain awful, then we've got good reason to think that rechecking Blackmun's work might be worth the time.

# posted by

Chris : 11:41 AM

But that's hardly the only basis for joint opinion's SD argument; a significant factor was the reliance of a generation of women on legal abortion (and i think this factor was *more* important than the the fact that Roe engendered so much controversy).

And why does Ely get pride of place? Roe didn't fit into his democracy-reinforcing theory so he discarded it in order to save the rest of the Warren Court's agenda (voting rights etc) which he held nearer and dearer. But his theory -- while interesting -- is in shambles (and has been for a long time); Ely was much better at disposing that proposing. In any event, couldn't I just point to another prominent academic who supports a constitutional right to abortion and check your example of Ely. And, to anticipate your response, the issue is Casey was never really the sophistication of Blackmun's craftmanship and reasoning.

In any event, it is unfortunate that the "new generation" of abortion jurisprudence will be built on Kennedy's moral revulsion to a particular practice.

# posted by

Calvin TerBeek : 12:13 PM

I'm not saying we should defer to academics like Ely; I'm saying that we should take the existence of significant academic criticism of an opinion as a reason to think things through on our own. Of course, the same is true if someone says, hey, Bowers wasn't right, because such-and-so; it gives us a reason not to let Justice White do our thinking for us. Not so for, say, unanimous tax cases that attract no academic criticism.

Casey has the reliance-interest stuff too, of course, but that's pretty different from Prof. Tushnet's argument about economy in decision-making.

# posted by

Chris : 3:17 PM

No, I really don't think you mean that. Think about it: nearly *every* "important" opinion is criticized academically, either by a Levinson or a Barnett, a Dorf (or Tribe) or a Paulsen. That cannot mean that the Court should reconsider every opinion that law profs heap significant criticism on. Which law profs are the standard? Only when the libs criticize a lib op? Only when the conservative criticize a Thomas op? That's not a very useful rule (or really a rule at all).

But wouldn't the law profs love it!

# posted by

Calvin TerBeek : 6:00 PM

I'd use this rough guide for when to defer to the Court purely as a way of saving energy deciding what the Constitution means: if, at first blush, the academic criticism of the Court's opinion makes more sense than the Court's opinion itself, then I'd be inclined not to defer to the Court. For Roe, given the number of friends of abortion rights who want to rewrite it, that's not too difficult a call.

It's worth pointing out, if it's not perfectly clear, that Prof. Tushnet's argument for stare decisis would itself apply to professors or anyone else deciding what the Constitution requires. Ordinary citizens and academics need to save interpretive energy too.

# posted by

Chris : 6:38 PM

Mark,
Your view of stare decisis reminds me of a talk that Cass Sunstein gave in the fall of this year discussing (what he called) Burkean constitutional interpretation.
Seeing as it was six months ago, I'm probably terribly paraphrasing, but the idea of the stare decisis (and in some ways, common law decisionmaking generally) according to Burkean principles was that past precedent and current standards are based on all the collective wisdom of past experiences, and therefore we should stray from them cautiously. That is, if past decisions are the result of all the collective wisdom on the subject, one modern-day judge should be wary in straying from that standard based on their individual wisdom alone.

I think this idea adds to your view of stare decisis as well.

# posted by

Jordan : 5:20 PM

Mark Tushnet said,
>>>>>Stare decisis conserves decision-making energy. . . . .Stare decisis also encourages an appropriate humility in decision-makers about their own capacity to arrive at correct decisions. <<<<<<<

I don't see how stare decisis "conserves" decision-making energy -- one can simply read the reasoning used by others, unless one is just curious to see whether one would use the same reasoning and reach the same conclusion by reasoning from scratch.

I feel that there is an obligation to try to do some original or independent thinking on a new case instead of just blindly trying to apply precedent. I feel that showing "humility" and trying to "conserve" decision-making energy are merely cop-outs.

IMO the main purpose of stare decisis is to give people confidence that they can usually rely on precedents. I therefore feel that precedents should not be overturned except for truly compelling reasons.

# posted by

Larry Fafarman : 9:01 PM

In a collection of his work, talking about Ely, we have his famous anti-Roe law review article AND his statement that he support Casey on precedential ground. He even wrote a congratulation letter to the plurality. He also was against the abortion funding cases on equality grounds.

# posted by

Joe : 9:02 AM