Overruling

• Author: James R. Asperger
• Pages: 1868-1870

Page 1868

The authority of the Supreme Court to reconsider and overrule its previous DECISIONS is a necessary and accepted part of the Court's power to decide cases. By one estimate, the Supreme Court overruled itself on constitutional issues 159 times through 1976 and in each case departed from the DOCTRINE of STARE DECISIS.

The basic tenet of stare decisis, as set forth by WILLIAM BLACKSTONE, is that PRECEDENTS must generally be followed unless they are "flatly absurd" or "unjust." The doctrine promotes certainty in the law, judicial efficiency (by obviating the constant reexamination of previously settled questions), and uniformity in the treatment of litigants. The roots of the doctrine, which is fundamental in Anglo-American jurisprudence, have been traced to Roman civil law and the Code of Justinian.

Justices and commentators have disagreed about the proper application of stare decisis to constitutional decision

Page 1869

making. Justice (later Chief Justice) EDWARD D. WHITE, in his dissenting opinion in POLLOCK V. FARMERS LOAN TRUST CO. (1895), observed:

The fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members. Break down this belief in judicial continuity, and let it be felt that on great constitutional questions this court is to depart from the settled conclusions of its precedessors, and to determine them all according to the mere opinion of those who temporarily fill its bench, and our Constitution will, in my judgment, be bereft of value and become a most dangerous instrument to the rights and liberties of people.

Under this view, stare decisis should be applied with full force to constitutional issues.

The more commonly accepted view is that stare decisis has a more limited application in CONSTITUTIONAL INTERPRETATION than it does in the interpretation of statutes or in ordinary common law decision making. Although Congress, by a simple majority, can override the Supreme Court's erroneous interpretation of a congressional statute, errors in the interpretation of the Constitution are not easily corrected. The AMENDING PROCESS is by design difficult. In many instances only the Court can correct an erroneous constitutional decision.

Moreover, the Court will on occasion make decisions that later appear to be erroneous. As Chief Justice JOHN MARSHALL remarked in MCCULLOCH V. MARYLAND (1819), the Constitution requires deductions from its "great outlines" when a court decides specific cases. Because the modern Supreme Court generally accepts for review only cases in which principles of broad national importance are in competition, its decisions necessarily involve difficult questions of judgment. In view of the difficulties inherent in...