The cost of judicial error: stare decisis and the role of normative theory.

Author:Lash, Kurt T.
Position:The Evolution of Theory: Discerning the Catalysts of Constitutional Change

Changes in constitutional doctrine impose costs in terms of the values traditionally associated with the rule of law. Stability, predictability, and public confidence in the presumptive legitimacy of current law all can be undermined by departures from, or formal overruling of, prior precedent. The prudential doctrine of stare decisis is meant to ameliorate these costs by counseling judicial adherence to precedent even in those cases where a judge believes the prior decision was wrong. (1) Although consistently described as a discretionary policy, as opposed to an "inexorable command," the Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. (2)

Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity. This Article argues that, on the contrary, stare decisis ought not be applied in the same manner in all cases. In fact, occasionally stare decisis should not apply at all.

Before the Court considers whether and how to apply stare decisis in a constitutional case, it must first determine whether the application of the doctrine is appropriate. This initial determination requires an application of normative interpretive theory. When viewed through the lens of theory, some judicial errors impose such high costs that application of the doctrine of stare decisis is inappropriate, and those errors should simply be rectified. Even in those constitutional cases where theory allows the maintenance of judicial error to be a legitimate option, considerations of normative theory affect how the Court ought to balance the costs of upholding against the costs of overruling erroneous precedent. In cases where theory suggests the costs of judicial error are relatively low, avoiding substantial harm to the rule of law might reasonably suggest that the Court should "stand by" the flawed decision. Where theory suggests the costs of error are high, however, only the most severe disruption to the rule of law can justify maintaining a flawed precedent.

This balancing of normative theory and stare decisis occurs in all judicial applications of stare decisis, though not always in a transparent manner. This Article suggests that such balancing is perfectly appropriate but that it needs to be more deeply theorized and more transparently applied.

I begin by considering some of the high-profile cases of the Rehnquist and Roberts Courts that dealt with the issue of maintaining a flawed precedent. This is not meant to be an exhaustive account, but merely a review of those cases that highlight the Court's different approaches to stare decisis in different cases. On their faces, these decisions seem to apply different and almost contradictory theories of stare decisis. When viewed through the lens of normative theory, however, the decisions reflect not so much contradictory applications of stare decisis as varying assessments of the cost of maintaining judicial error. The impact of this counter-balancing consideration of normative theory is especially evident in the Roberts Court's decision to overrule Austin v. Michigan State Chamber of Commerce (3) in Citizens United v. Federal Election Commission. (4)

Building upon the implicit theory of Citizens United, the final Part sketches a more complete theory of stare decisis that takes into consideration both the rule of law considerations of stare decisis and the normative considerations that flow from the traditional theory of popular sovereignty.


    1. Setting the Stage: Planned Parenthood v. Casey

      The joint plurality opinion of Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter in Planned Parenthood of Southeastern Pennsylvania v. Casey (5) is equally famous and infamous for its attempt to justify the Court's continued adherence to "the essential holding of Roe v. Wade." (6) The opinion is worth a somewhat extended discussion given its important role in later discussions of stare decisis in both the Rehnquist and Roberts Courts.

      The plurality began with normative theory. Rejecting interpretive approaches that limited protected rights to those listed in constitutional text or those traditionally protected at law, the plurality defined due process liberty as "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." (7) The plurality arrived at this definition through the application of "reasoned judgment," (8) which, in this case, involved extracting an overarching principle of liberty from twentieth-century due process precedents characterized by the plurality as representing "[o]ur law" and "[o]ur cases." (9)

      Having applied normative interpretive theory to identify the underlying right, the plurality conceded that Roe represented "an extension" of the right, (10) and hinted that not all of the plurality members believed that this particular extension was correctly decided. (11) The nature of Roe's potential error, however, was limited. According to the plurality, "[e]ven on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman's liberty." (12)

      In light of this minor potential error, the plurality proceeded to consider whether the principles of stare decisis counseled upholding Roe. (13) Here, the plurality invoked the familiar dictum that stare decisis is not an "'inexorable command'" (14) but involves "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." (15) The plurality then listed four specific considerations: (1) whether the precedent "def[ies] practical workability," (16) (2) whether overruling the precedent would impose a "special hardship" on those relying on past precedent, (17) (3) whether post-precedent legal developments had "left the old rule no more than a remnant of abandoned doctrine," (18) and (4) "whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification." (19)

      A wealth of literature already exists analyzing the plurality's treatment of stare decisis. (20) For the purposes of this Article, it is important only to point out that the so-called "prudential and pragmatic considerations" (21) are suffused with normative constitutional theory. Firstly, the plurality expands consideration of relevant reliance interests beyond the traditional subjects of "property or contract" in order to include consideration of "[t]he ability of women to participate equally in the economic and social life of the Nation" and how that ability "has been facilitated by their ability to control their reproductive lives." (22) This is a consideration sounding in a normative theory of equal protection, and has been recognized as such. (23) Secondly, the plurality concludes that upholding Roe will not lead to further judicial error (another factor in their stare decisis analysis) on the grounds that Roe appropriately built on normatively correct precedents like Griswold v. Connecticut and Eisenstadt v. Baird. (24) Thus, to the degree that Roe erred, it was not in its normative theory of constitutional liberty, but in its failure to fully appreciate "the strength of the state interest in fetal protection." (25)

      In short, the plurality adopts and applies a normative "Living Constitution" theory of constitutional interpretation--one that justifies judicial identification and enforcement of unenumerated conceptions of personal liberty and equal protection regardless of textual mandate or original meaning. (26) This theory suggests that the costs imposed by Roe's error, if any, were minimal. (27)

      This plurality's living constitutionalist normative theory of judicial power is most strikingly presented in the final section of its joint opinion, where it addresses the costs of making any move that might cause the people to question the leadership of the Supreme Court.

      The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands.... ... Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.... ... Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's...

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