July 5, 2018

Stare decisis: an explainer

By Mark Miller Senior Attorney

The news of an opening at the Supreme Court of the United States forces all Americans to re-acquaint themselves with the Latin term “stare decisis.” The term, which roughly translated means ‘let the decision stand,’ re-appears in the media each time the President finds himself with an opportunity to make an appointment to the High Court.

But just what does stare decisis mean in practice? Does it mean that a court must always follow a prior decision it reached on a question of law?

Hardly. And a review of cases from just this term, as well as history, demonstrates that stare decisis has its place in our judicial canon, but the Court does not consider it an inexorable command.

First, consider the “internet tax” case – South Dakota v. Wayfair. Here, the justices considered two Supreme Court precedents from the last 50 years, both of which held that a state cannot require an out-of-state seller with no physical presence in the state to collect and remit sales taxes on goods the seller ships to consumers in the state. Despite those precedents, the Court overruled them – in part because of the changes in the country wrought by Amazon and other internet sellers. It held that states are free to collect taxes on sales made over the internet to consumers in their states, even if the sales are made by out-of-state sellers.

Stare decisis? It was of no moment to the majority of the justices, even when Chief Justice John Roberts played that beat in his dissenting opinion.

Next, consider the case of Janus v. AFSCME, an important case related to government employee unions decided late in this year’s Supreme Court term. Here, once again the Court was confronted with a precedent – this time from 1977 – which held a state could compel a government employee to pay fees to a union that the employee refused to join. That the employee did not support the union or what it did with his money did not matter to the justices when this question was first addressed in a case known as Abood v. Detroit Board of Education. There, the Court said it did not violate the Constitution to force the employee to pay the union fees the employee did not want to pay.

But, in the Janus case the Supreme Court held that it got the call wrong in Abood. Justice Samuel Alito explained for a majority of the justices that forcing an employee to pay money to a union that the employee does not support violates that employee’s free speech rights.

What of stare decisis? What of adhering to precedent?

When the Court misapplies the Constitution, as it did in Abood, those concerns can be overcome by the need to ensure the Constitution is followed and the path of the law corrected- as the Court did in Janus.

Certainly, stare decisis has its place in our courts. Lower courts should and must always adhere to the controlling precedents of higher courts. And even the nation’s highest court should recognize that following precedent in most instances provides stability and reliability for both the law and the nation. A stable, reliable system of laws allows Americans to understand what conduct is lawful and what is not and to govern their behavior accordingly.

A good example of where stare decisis carried the day for these very reasons arose a decade or so ago. Then, the Supreme Court was asked to reconsider Miranda v. Arizona – the 1966 decision that required law enforcement officers to provide arrestees with their “Miranda warnings” – “you have the right to remain silent, anything you say can and will be used against you…” All Americans know those warnings because they appear on television so regularly.

Although those warnings are not exactly in the text of the Constitution, the nation came to rely upon them over the years, with little objection, in the ensuing decades. The Miranda warnings became widely adopted and accepted by the American people. Therefore, when the High Court was asked to declare those warnings not constitutionally required in a case called Dickerson v. United States, based in part on a congressional effort to overrule the warnings, Chief Justice William Rehnquist upheld the warnings as “constitutionally-based” and worthy of protection specifically because of stare decisis.

Thus, in that instance, stare decisis carried the day.

But compare the outcome of the Miranda warnings cases to the outcome of Brown v. Board of Education. In that case, the Supreme Court, led by Chief Justice Earl Warren, overruled the infamous Plessy v. Ferguson case—the case that said the government could offer “separate but equal” accommodations to different races yet not run afoul of the Constitution. In Brown, the Court threw out the Plessy decision—and rightly so. The country as a whole had not come to accept the notion of separate but equal as equal at all, and legal organizations like the NAACP Legal Defense Fund had attacked the decision in the years between Plessy and Brown to demonstrate that Plessy was wrongly decided. Their arguments overcame the power and persuasiveness that stare decisis plays in the courts by demonstrating beyond dispute how wrong Plessy was.

In deciding whether stare decisis should control the Supreme Court’s decision in reviewing a precedent anew, perhaps some lessons can be gleaned from these earlier cases.

First, have the facts and technology changed in the country in a manner that makes relying upon the precedent less persuasive, as in the internet tax case—Wayfair?

Second, did the Court just get it wrong when it first considered the legal issue, as Justice Alito said it did when he and a majority of the Court overruled Abood in the Janus decision a few weeks ago?

And third, has the earlier decision come to be accepted by the vast majority of Americans, like Miranda? Or is the decision more like Plessy, a decision that rightly came to be reviled by many Americans in the years after it was decided?

At bottom, as these earlier decisions demonstrate, stare decisis has an important role to play in our court system. But it is by no means controlling. The Court has repeatedly rejected stare decisis when the circumstances—and the text of the Constitution—demand it.

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