Oblique view of the front facade of the US Supreme Court building in Washington, DC. A portico lined with marble columns with the words “Equal Justice Under Law” inscribed above them. A statue of a seated lawgiver holding a tablet is in the foreground.
29 June 2022
Stare decisis is the Latin name of a legal principle that is defined in Black’s Law Dictionary as follows:
stare decisis (stahr-ee di-sI-sis or stair-ee) n. (Latin “to stand by things decided”) (18c) The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.
Stare decisis is essential to the rule of law. Without the stability of a consistent application, the law is determined by the whims of individual jurists, and individuals cannot rely upon it. In the 1992 Supreme Court decision in Planned Parenthood v. Casey, Justice Sandra Day O’Connor laid out the three considerations for determining whether stare decisis should be cast aside and a prior decision overturned: Has the old rule become impractical? Do people rely on the old rule in such a way that overturning it would lead to more harm than good? And is the old rule still even relevant? O’Connor wrote:
Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an “inexorable command,” and certainly it is not such in every constitutional case [….] Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability […]; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation […]; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine […]; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.
(For ease of reading, I have omitted O’Connor’s citations to prior cases here.)
According to O’Connor’s test, even if a judge believes a prior decision to have been wrongly decided they should not necessarily overturn it. For instance, if a judge believed that the US Supreme Court decision permitting same-sex marriage (i.e., Obergefell v. Hodges) was wrongly decided, allowing same-sex marriage is still practical and relevant, and the harm caused to the hundreds of thousands who have relied upon the decision and gotten married would outweigh the de minimis harm in keeping the decision in place.
Stare decisis is not an idiom found in classical Latin, having been invented in the seventeenth century—not the eighteenth as Black’s incorrectly indicates. It appears in the record of a legal case decided by a British court in 1673:
It being moved again this Term, Hale consented that it should be reversed according as the latter Presidents have been; for he said it was his Rule Stare decisis.
It is used as a verb in another case, this one from 1735. While in Latin stare decisis is grammatically a verb phrase, in English usage it is almost always a noun phrase. This is an exception to the usual trend:
Whatever therefore my first thoughts were, and how much soever the law of executors wants alteration; we think, that as to the two bonds which were forfeited, the defendant must have an allowance for the penalties: and we must stare decisis.
And it is occasionally applied to contexts other than legal litigation. In this one, it is used in the context of politics. From an account of the debate in the Irish House of Commons from 1800:
From the first moment of the French war, the horror of innovation has been the Minister’s first principle. Stare decisis and non quieta movere has been the cant of the cabinet. This sentiment has been able to resist every improvement, however necessary, and to push every abuse, however odious. This sentiment has justified Mr. Pitt in suspending, if not deserting, his early politics of Parliamentary Reform.
Casting aside stare decisis without due consideration is a marker of an activist judge who is taking on the role of a politician and legislator, rather than that of a jurist.
Sources:
Black’s Law Dictionary, eleventh edition, 2019. Bryan A. Garner, ed. Thomson Reuters Westlaw, s.v. stare decisis.
Oxford English Dictionary, third edition, June 2016, s.v. stare decisis, phr.
“Planned Parenthood of Southeastern PA. v. Casey.” Cases Adjudged in the Supreme Court at October Term, 1991. United States Reports, vol. 505. Washington: US Government Printing Office, 1996, 854–855.
A Report of the Debate in the House of Commons of Ireland on Wednesday and Thursday the 15th and 16th of January, 1800. Dublin: James Moore, 1800, 61. HathiTrust Digital Archive.
Strange, John. Reports of Adjudged Cases, vol. 2. London: Henry Lintot for William Sandby, 1755, 1035. HathiTrust Digital Archive.
Ventris, Peyton. Reports. London: Richard and Edward Atkyns for Charles Harper, 1696, 243. Early English Books Online.
Photo credit: Daderot, 2008. Public domain image.