AuthorGentithes, Michael
PositionU.S. Supreme Court

TABLE OF CONTENTS INTRODUCTION 86 I. THE EVOLUTION OF STARE DECISIS IN THE SUPREME COURT 93 II. JANUS'S EMERGENCE 98 A. The Ascendance of the Weak Stare Decisis Tradition 99 B. Janus: The Strongest Expression of the Weak Stare Decisis Tradition 101 C. Janus's Descendants 105 III. POORLY REASONED JUSTIFICATIONS 113 A. Poor Reasoning as a Condition Precedent to Stare Decisis Discussion 114 B. Demonstrable Error and Stare Decisis 118 C. The Consequences of the Weak Stare Decisis Tradition 123 IV. PRECEDENTIAL VINTAGE 127 A. The Court's Historical Approach to Historical Decisions 127 B. Age as a Proxy 130 C. Dangers in a "Wave Theory" of Stare Decisis 134 D. Youth Revisited 138 CONCLUSION 140 INTRODUCTION

Following several recent changes on the Supreme Court's bench, pundits have speculated that the Court may be willing to overturn prior decisions in controversial constitutional cases. (1) Though such forecasts are speculative, (2) there is evidence that a weaker version of stare decisis--the presumption that the Supreme Court generally should not overrule its prior decisions--is in vogue on the Court. The 2018 decision Janus v. American Federation of State, County, and Municipal Employees, Council 31 has emerged as a new leading precedent on precedents. (3) The Court cited it twice in the 2018 Term in cases in which it overruled a precedent. (4) In two further opinions, Justice Gorsuch cited Janus when he would have overruled other precedents. (5) And in the 2019 Term, Justices across the ideological spectrum cited Janus in two major decisions, frequently using Janus's stare decisis framework to argue for overruling precedent. (6) Though others have noted Janus's importance, (7) this Article provides the first analysis both of that decision's place within a broader movement to weaken stare decisis and of the two unseemly changes that movement has made to stare decisis doctrine: (1) permitting the Court to overrule a precedent simply because of its "poor reasoning," and (2) discrediting older precedents because they may have violated individual rights during their life span.

Janus's formulation of the stare decisis doctrine is a new zenith in the "weak" stare decisis tradition. The weak tradition posits that "poor reasoning" in a prior decision is not merely a condition precedent to stare decisis analysis but is also a substantive consideration in that analysis that may itself justify a reversal. (8) By contrast, under the "strong" stare decisis tradition, a precedent should stand unless there is some "special justification" to overrule it, regardless of the quality of its reasoning. (9) Potential justifications include whether the precedent "def [ies] practical workability," is subject to special reliance interests, is a mere "remnant of abandoned doctrine," or is based upon facts that have changed so significantly that the rule is no longer applicable. (10)

Prior to Janus, the most prominent example of the weak stare decisis tradition was the Court's discussion in Citizens United v. Federal Election Commission. (11) In that case, the Court overruled a twenty-year-old precedent (12) by emphasizing the "quality of reasoning" in that opinion, discussing it first in its stare decisis analysis before mentioning any other factors. (13)

In Janus, the Court made that weakened version of stare decisis even weaker. The majority's reformulated list of stare decisis factors undermined the doctrine in two ways. (14) First, Janus placed "quality of... reasoning" as the very first factor Justices should consider when unsatisfied with a precedent, and the whole of its analysis of Abood focused on its substantive flaws. (15) This suggests that poor reasoning in a prior decision is more than just a cause to turn to stare decisis analysis; it is instead a sufficient condition to overturn decisions. That elevates the "poor reasoning" factor to new and dangerous prominence.

Poor reasoning provides an ever-present justification for overturning decisions. Conversations about stare decisis only arise, after all, when current Justices believe that a prior decision was substantively incorrect and might warrant a change in direction. (16) Stare decisis in the wake of Janus would provide little restraint against changing course. (17) Such a conception of stare decisis would be unable to settle disputes independent of the Justices' views about the substantive correctness of a decision or the proper method to achieve substantively correct results. (18) Widespread adoption of Janus would significantly undermine doctrinal stability. The ability of judicial precedents to make the law "certain and known" through public announcement and repeated confirmation would be significantly reduced. (19) It would also undermine judicial legitimacy. The Court and the appointments process would become even more overtly politicized than they are today. Janus might also undermine legal consistency if lower courts freely deviate from Supreme Court precedent that appears substantively incorrect. The stare decisis doctrine itself would be rendered so incoherent and unworkable that it could hardly be considered a doctrine at all; even Janus's supporters will struggle to identify any consensus about the substantive correctness of prior decisions. Janus's emerging role as an authoritative precedent on precedent thus presents a grave danger.

The second way that the Janus formulation diluted the stare decisis doctrine was by overemphasizing the importance of a precedent's age in determining its precedential weight. This factor came to prominence in two 2009 decisions, Montejo v. Louisiana (20) and Pearson v. Callahan, (21) in which the Court suggested that younger precedents can be more readily overturned, (22) though that trend was mitigated recently by the Court's deference to a four-year-old decision in 2020's June Medical Services L.L.C. v. Russo. (23) In contrast to the Montejo/Pearson approach, the Janus court suggested that some older precedents should receive less precedential weight as well. (24) For the Janus Court, older decisions that are substantively incorrect may have been violating citizens' rights for a longer period and are thus more dubious. (25) Additionally, because older decisions may have been judicially criticized over their long life span, rational actors have likely disregarded them, weakening the precedent's value. (26)

Janus's claims invert the relationship between a precedent's age and its jurisprudential stability, even within the weak stare decisis tradition. If the fact that a precedent has been around for decades suggests that its substantive correctness is actually more dubious--no matter whether others have reviewed the precedent and supported it--the doctrine is far weaker. Older decisions can easily be discarded because they are both likely to have been criticized by someone at some time and may have worked a substantive injustice upon citizens for a long period of time. When combined with earlier suggestions in the weak stare decisis tradition that young precedents are also entitled to less deference, (27) Janus's conception of the doctrine seems to undermine the value of any precedent, no matter its vintage.

The Janus view of a precedent's age also opens the door to what I call a "wave theory" of stare decisis. Using either the Janus or the Montejo/Pearson approach to a precedent's age, Justices can make contrary suggestions about stare decisis's binding strength over time. A new Justice can begin her career by claiming fidelity to a weak stare decisis tradition that allows her to rapidly overrule cases with which she substantively disagrees, only to transition to a strong stare decisis tradition later in her career in an effort to protect her perceived gains from being overruled by subsequent judicial generations. Such waves in stare decisis are intellectually inconsistent, as the Justice who ascribes to changing conceptions of stare decisis over time in fact ascribes to no real, binding version of stare decisis at all. Furthermore, wave theories would render stare decisis so malleable as to become meaningless, rendering all precedents vulnerable to being overruled at any time.

Instead, a decision's age, and subsequent decisions reaffirming it, should increase its precedential weight. Although commentators have warned against the dangers of overruling a precedent too quickly (28)--a concern some Justices have also recognized (29)--history shows that the Supreme Court has been more willing to overturn recent, rather than older, decisions. (30) Janus undermines this reverence for the long-decided precedent. Instead, the Justices should give some deference to ancient precedents, with perhaps a special examination of the factual underpinnings of those decisions to guard against the possible inapplicability of those precedents under changed factual conditions. In addition, relatively new precedents should be subject to genuinely critical review, thereby ensuring that when a precedent has aged well on the Court, it has been substantively reaffirmed by generations of Justices who had a genuine opportunity to reconsider it.

This Article will proceed as follows. After initially tracing the evolution of stare decisis doctrine in the Supreme Court's jurisprudence, the Article outlines the emergence of Janus as a pivotal precedent on precedent in the present day. The Article will then consider how the Janus formulation of stare decisis renders it almost incoherently ineffectual given the emphasis it places on the quality of a precedent's reasoning. Such poor reasoning is ever-present when Justices consider stare decisis, and thus its prominence will often tip the scales against upholding prior decisions. Next, the Article will consider how Janus alters the weight of a precedent based upon its age. The Article will explain how this factor wrongly suggests that older precedents are more dubious if they have been criticized at...

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