Foolish consistency: on equality, integrity, and justice in stare decisis.

Author:Peters, Christopher J.



    1. Two Kinds of Theory of Stare Decisis

    2. Consequentialist and Deontological Theories of

      Stare Decisis in Recent Supreme Court Cases

    3. Justice Defined


    1. The Traditional Conception: Equality as Tautology

    2. The Equality Heuristic

    3. The Failure of Equality as a Substantive

      Norm in Adjudication

      1. The Ontology of the "Wrongness" of

        Plaintiff Y's Treatment

      2. Equality vs. Equality, Equality vs. Justice

    4. A Brief Summation


    1. The Evolution of Law as Integrity

    2. Checkerboards and Invisible Planets

    3. Integrity as an Aspect of Justice

      1. Integrity and the Courts: Repairing the Ship

        One Plank at a Time

      2. Empty Integrity

        1. Checkerboard Statutes from the

          Original Position

        2. Different Kinds of Checkerboard Solution

        3. The Original Position Revisited

      3. The Failure of Integriry as a Substantive

        Norm in Adjudication


        There is no power in Venice Can alter a decree established. Twill be recorded for a precedent, And many an error by the same example Will rush into the state

        William Shakespeare(1)

        But because there is no Judge Subordinate, nor Soveraign, but may err in a Judgment of Equity; if afterward in another like case he find it more consonant to Equity to give a contrary Sentence, he is obliged to doe it. No mans error becomes his own Law; nor obliges him to persist in it. Neither (for the same reason) becomes it a Law to other Judges ....

        Thomas Hobbes(2)

        A foolish consistency is the hobgoblin of little minds ....

        Ralph Waldo Emerson(3)


        The rule stare decisis et non quieta movere(4) bemused Shakespeare, angered Hobbes, and confounds us still today.(5) It confounds us because it occasionally seems to stand justice on its head. Stare decisis demands that courts conform their decisions to decisions reached by previous courts, and sometimes those previous decisions will have been unjust. Stare decisis, that is, sometimes requires courts to reach unjust decisions. This fact may seem to us, as it did to Hobbes, a disturbing anomaly in a system ostensibly devoted to justice.

        But if strictly observed, the scope of stare decisis can extend far beyond a single unjust decision. Its effects can be cumulative: A single erroneous court decision, if followed, becomes two erroneous decisions, then three, and soon a "line" of cases. In this way, stare decisis has the potential to import injustice irremediably into the law. In Portia's words, a single wrong decision need only be "recorded for a precedent, And many an error by the same example/ Will rush into the state."(6)

        Of course, in practice stare decisis probably is not often as bad as all that. Just as it can institutionalize erroneous results, it also can (and certainly often does) ensure that just decisions are reproduced more often than they otherwise would be. And the rule of stare decisis as currently observed in Anglo-American law is not a strict one: Courts can decline to follow their own previous decisions when those precedents are judged to be clearly in error. Lawyers and judges, moreover, regularly display amazing ingenuity in "distinguishing" unfavorable precedents that otherwise would be "controlling."(8) In the real world, then, the prospect of grievous injustice "rushing into the state" may seem rather remote.

        But the prospect exists nonetheless. Courts may be adept at manipulating precedent to reach decisions they want to reach, but they are not always able or willing to do so; sometimes courts believe (or claim to believe) they are bound by stare decisis to reach results they think unjust. The opinions offered by the members of our Supreme Court in the recent case Planned Parenthood v. Casey(9) illustrate this phenomenon quite strikingly, all the more so because the case involved an issue many believe to be of fundamental constitutional importance. In Casey, a five-justice majority of the Court relied explicitly and almost exclusively on stare decisis to reaffirm the "essential holding" of the Court's controversial Roe v. Wade(10) decision. "Liberty," opined the joint authors of the plurality opinion,(11) finds no refuge in a jurisprudence of doubt."(12) With this as its rallying cry--despite the fact that "[s]ome of [the Justices] find abortion offensive to our most basic principles of morality,"(13) and "[e]ven on the assumption that the central holding of Roe was in error"(14)--the Court in Casey refused to overturn Roe and to give wholesale approval to the Pennsylvania scheme of abortion regulation that was before it:

        While we appreciate the weight of the arguments made on behalf of the State in the cases before us, arguments which in their ultimate formulation conclude that Roe should be overruled, the reservations any of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis.(15)

        The plurality opinion then indulged in a lengthy exegesis of the Court's policy on stare decisis(16) and the special force of that doctrine with respect to "rare" cases such as Roe.(17) Even Chief Justice Rehnquist's partial dissent,(18) which began with the bald statement that "[w]e believe that Roe was wrongly decided, and that it can and should be overruled,"(19) was quick to assure the reader that overruling Roe would be "consistent[] with our traditional approach to stare decisis in constitutional cases."(20)

        Whatever one may think of the merits of Roe or of Casey, one cannot read the opinions in the latter case without feeling keenly the continuing power of stare decisis--as the plurality put it, the "force of stare decisis"(21)--even at the highest levels of constitutional jurisprudence. As I intend to make clear later in this Article,(23) this fact in itself need not trouble us. Indeed, the approach to stare decisis taken by the Casey plurality--one of explicit, calculated pragmatism--is, I believe, the only defensible methodology of adjudicative consistency. But many who disagree with the result of Casey will find little comfort in the notion that, in perpetuating what such critics believe to be a bad rule from a bad precedent, the Court's analytical technique at least was sound. For many who take issue with Roe, Casey could hardly be a clearer example of a very foolish sort of consistency.

        As Casey powerfully demonstrates, then, stare decisis remains far more than a mere echo in our legal culture. At the very least, it is a formidable obstacle to any court seeking to change its own law. And, of course, it still rigidly binds lower courts to much existing case law, as they have no power to overturn or ignore the precedents of their superiors.

        But if stare decisis continues to play an important role in adjudication, it is a strange, uncomfortable role--one that sometimes seems to procure injustice in the name of the law, and one that therefore demands convincing explanation. What good can come of a rule that prescribes consistency even at the expense of justice? What, indeed, is the point of stare decisis?

        There are two types of answer to that question. The difference between them is crucial, and it is a foundation of this Article. One kind of answer, the kind consisting of what I will call consequentialist justifications of stare decisis, is that stare decisis is justified because, and only to the extent that, it serves the interests of justice in a general sense. Consequentialist theories acknowledge that stare decisis must always be tested for how well it serves the ultimate end of justice to determine whether it has value in any given case. The other kind of answer, consisting of what I will call deontological justifications of stare decisis, is that stare decisis (or, more precisely, the adjudicative consistency it serves) is an end in itself. Deontological theories deny that stare decisis must ever be tested for how well it serves the end of justice to determine its value; they assert that adjudicative consistency has inherent value that is entitled to be weighed against justice in any given case.

        The mission of this Article is to demonstrate that stare decisis cannot be justified deontologically. I focus on stare decisis because it is the most important application of a theory of decisionmaking consistency in our legal culture; it is what courts actually do, or claim to do. But stare decisis (that is, stare decisis as some courts claim to apply it) is simply one manifestation of the notion that there is something inherent in decisionmaking consistency itself that has normative value and demands respect. In critiquing deontological justifications of stare decisis, I necessarily am critiquing "pure consistency" theories in this broader sense.(24)

        This point could give rise to some confusion, and it is best to dispel it now. As Part I makes clear, my targets in this Article are theories holding that the application of stare decisis--the decision of court cases consistently with the decisions of other court cases(25)--has some inherent moral value, without regard to the consequences of that practice. But it is important to understand that I am only critiquing deontological theories of consistency; I aim only to challenge those theories that value decision-to-decision consistency in itself. Thus my arguments here would apply, for instance, to a theory that requires courts to decide cases consistently with legislative enactments on the ground that the bare fact of consistency between one legal decision (that of the court) and another legal decision (that of the legislature) is inherently a good thing. But my arguments would not apply to a theory that requires courts to decide cases consistently with legislative enactments on the ground that the structural principle of legislative supremacy dictates that result. Such a theory does not value consistency in itself; it values consistency only...

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