Relative Stare Decisis

Andrew Coan

The U.S. Supreme Court has recently overturned landmark precedents on abortion rights, affirmative action, and Chevron deference, while signaling its willingness to reconsider other long settled doctrines. But amid this upheaval, one principle appears to command broad consensus: Stare decisis carries heightened force in statutory cases, where Congress can override the Court's decisions through ordinary legislation, and less force in constitutional cases, where override can only be accomplished through the onerous Article V amendment process. Every current member of the Court has endorsed this doctrine of "relative stare decisis" in some form.

Despite this apparent consensus, relative stare decisis rests on surprisingly fragile foundations. The principal justifications offered by its adherents are underdeveloped or unpersuasive, and several compelling critiques have gone unanswered. Perhaps most troublingly, the Supreme Court routinely and illogically invokes this broad generalization about two heterogeneous categories of decisions as a reason to follow or depart from precedent in particular statutory or constitutional cases. This is like trying to determine the height of Muggsy Bogues (5'3") or Spud Webb (5’7”) from the fact that NBA players are taller on average than Major League Baseball players. In mathematical terms, the Court's use of relative stare decisis to decide particular cases confuses ordinal ranking with cardinal value. This analytical error probably matters more than abstract debates about the validity of relative stare decisis as a theoretical proposition. 

In a new paper, I attempt to reconstruct relative stare decisis from the ground up, strengthening the doctrine’s theoretical foundations, while suggesting significant modifications to take on board the key insights of its critics. The core of the Article consists of two distinct justifications for treating statutory and constitutional precedents differently. The error-costs rationale provides a more rigorous foundation for familiar intuitions about legislative override. The epistemic rationale explains that statutory precedents presumptively embody greater accumulated wisdom than constitutional precedents. 

Because the strength of these justifications varies significantly within statutory and constitutional domains, as well as across the statutory-constitutional divide, it is necessary to calibrate the strength of stare decisis more granularly than the Supreme Court has done thus far. To that end, the paper develops a practical toolkit for balancing stability and reliance interests against error costs, while also accounting for the epistemic value of statutory precedents that have stood the test of time. The whole paper is available here.