CRS Annotated Constitution

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Stare Decisis in Constitutional Law.—Adherence to precedent ordinarily limits and shapes the approach of courts to decision of a presented question. “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error so fruitful in the physical sciences, is appropriate also in the judicial function.”638 Stare decisis is a principle of policy, not a mechanical formula of adherence to the latest decision “however[p.712]recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.”639 The limitation of stare decisis seems to have been progressively weakened since the Court proceeded to correct “a century of error” in Pollock v. Farmers’ Loan & Trust Co.640 Since then, more than 200 decisions have seen one or more earlier decisions overturned,641 and the merits of stare decisis seems more often celebrated in dissents than in majority opinions.642 Of lesser formal effect than outright overruling but with roughly the same result is a Court practice of “distinguishing” precedents which often leads to an overturning of the principle enunciated in the case while leaving the actual case more or less alive.643

Conclusion.—The common denominator of all these maxims of prudence is the concept of judicial restraint, of judge’s restraint. “We do not sit,” said Justice Frankfurter, “like kadi under a tree, dispensing justice according to considerations of individual expediency.”644 “[A] jurist is not to innovate at pleasure,” wrote Jutice Cardozo. “He is not a knight–errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of[p.713]order in the social life.”645 All Justices will, of course, claim adherence to proper restraint,646 but in some cases at least, such as Justice Frankfurter’s dissent in the Flag Salute Case,647 the practice can be readily observed. The degree, however, of restraint, the degree to which legislative enactments should be subjected to judicial scrutiny, is a matter of uncertain and shifting opinion.

Federal Question Jurisdiction

Section 2. Judicial Power and Jurisdiction


Cases Arising Under the Constitution, Laws, and Treaties of the United States

Cases arising under the Constitution are cases that require an interpretation of the Constitution for their correct decision.648 They arise when a litigant claims an actual or threatened invasion of his constitutional rights by the enforcement of some act of public authority, usually an act of Congress or of a state legislature, and asks for judicial relief. The clause furnishes the principal textual basis for the implied power of judicial review of the constitutionality of legislation and other official acts.

Development of Federal Question Jurisdiction.—Almost from the beginning, the Convention demonstrated an intent to create “federal question” jurisdiction in the federal courts with regard to federal laws;649 such cases involving the Constitution and treaties were added fairly late in the Convention as floor amendments.650 But when Congress enacted the Judiciary Act of 1789, it did not confer general federal question jurisdiction on the inferior federal courts but left litigants to remedies in state courts with appeals to the United States Supreme Court if judgment went against federal constitutional claims.651 Although there were a few juris[p.714]dictional provisions enacted in the early years,652 it was not until the period following the Civil War that Congress, in order to protect newly created federal civil rights and in the flush of nationalist sentiment, first created federal jurisdiction in civil rights cases653 and then in 1875 conferred general federal question jurisdiction on the lower federal courts.654 Since that time, the trend generally has been toward conferral of ever–increasing grants of jurisdiction to enforce the guarantees recognized and enacted by Congress.655


638 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–408 (1932) (Justice Brandeis dissenting). For recent arguments with respect to overruling or not overruling previous decisions, see the self– consciously elaborate opinion for a plurality in Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791, 2808–2816 (1992) (Justices O’Connor, Kennedy, and Souter) (acknowledging that as an original matter they would not have decided Roe v. Wade, 410 U.S. 113 (1973), as the Court did and that they might consider it wrongly decided, nonetheless applying the principles of stare decisis—they stressed the workability of the case’s holding, the fact that no other line of precedent had undermined Roe, the vitality of that case’s factual underpinnings, the reliance on the precedent in society, and the effect upon the Court’s legitimacy of maintaining or overruling the case). See id., 2860–2867 (Chief Justice Rehnquist concurring in part and dissenting in part), 2880–2885 (Justice Scalia concurring in part and dissenting in part). See also Payne v. Tennessee, 501 U.S. 808, 827– 830 (1991) (suggesting, inter alia, that reliance is relevant in contract and property cases), and id., 835, 842–844 (Justice Souter concurring), 844, 848–856 (Justice Marshall dissenting).
639 Helvering v. Hallock, 309 U.S. 106, 110 (1940) (Justice Frankfurter for Court). See also Coleman v. Alabama, 399 U.S. 1, 22 (1970) (Chief Justice Burger dissenting). But see id., 19 (Justice Harlan concurring in part and dissenting in part); Williams v. Florida, 399 U.S. 78, 117–119 (1970) (Justice Harlan concurring in part and dissenting in part).

Supplement: [P. 712, add to n.639:]

Recent discussions of and both applications of and refusals to apply stare decisis may be found in Hohn v. United States, 524 U.S. 236, 251–52 (1998) , and id. at 1981– 83 (Justice Scalia dissenting); State Oil Co. v. Khan, 522 U.S. 3, 20–2 (1997) ; Agostini v. Felton, 521 U.S. 203, 235– 36 (1997), and id. at 523–54 (Justice Souter dissenting); United States v. IBM Corp., 517 U.S. 843, 854–56 (1996) (noting principles of following precedent and declining to consider overturning an old precedent when parties have not advanced arguments on the point), with which compare id. at 863 (Justice Kennedy dissenting) (arguing that the United States had presented the point and that the old case ought to be overturned); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 231–35 (1996) (plurality opinion) (discussing stare decisis, citing past instances of overrulings, and overruling 1990 decision), with which compare the dissents, id. at 242, 264, 271; Seminole Tribe of Florida v. Florida, 517 U.S. 44, 61–73 (1996) (discussing policy of stare decisis, why it should not be followed with respect to a 1989 decision, and overruling that precedent), with which compare the dissents, id. at 76, 100. Justices Scalia and Thomas have argued for various departures from precedent. E.g., Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 200–01 (1995) (Justice Scalia concurring) (negative commerce jurisprudence); Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604, 631 (1996) (Justice Thomas concurring in part and dissenting in part) (rejecting framework of Buckley v. Valeo and calling for overruling of part of case). Compare id. at 626 (Court notes those issues not raised or argued).

640 157 U.S. 429, 574–579 (1895).
641 See Appendix. The list encompasses both constitutional and statutory interpretation decisions. The Court adheres, at least formally, to the principle that stare decisis is a stricter rule for statutory interpretation, Patterson v. McLean Credit Union, 491 U.S. 164, 171–175 (1989), at least in part since Congress may much more easily revise those decisions, but compare id., 175 n. 1, with id., 190– 205 (Justice Brennan concurring in the judgment in part and dissenting in part). See also Flood v. Kuhn, 407 U.S. 258 (1972).
642 E.g., United States v. Rabinowitz, 339 U.S. 56, 86 (1950) (Justice Frankfurter dissenting); Baker v. Carr, 369 U.S. 186, 339–340 (1962) (Justice Harlan dissenting): Gray v. Sanders, 372 U.S. 368, 383 (1963) (Justice Harlan dissenting). But see Green v. United States, 356 U.S. 165, 195 (1958) (Justice Black dissenting). And compare Justice Harlan’s views in Mapp v. Ohio, 367 U.S.643, 674–675 (1961) (dissenting), with Glidden v. Zdanok, 370 U.S. 530, 543 (1962) (opinion of the Court).
643 Notice that in Planned Parenthood of Southeastern Pennsylvania v. Casey, 112Ct.2791 (1992), while the Court purported to uphold and retain the “central meaning” of Roe v. Wade, it overruled several aspects of that case’s requirements. And see, e.g., the Court’s treatment of Pope v. Williams, 193 U.S. 621 (1904), in Dunn v. Blumstein, 405 U.S. 330, 337, n. 7 (1972). And see id., 361 (Justice Blackmun concurring.)
644 Terminiello v. City of Chicago, 337 U.S. 1, 11 (1949) (dissenting).
645 B. Cardozo, The Nature of the Judicial Process (New Haven: 1921), 141.
646 Compare Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (Justice Douglas), with id., 507 (Justice Black).
647 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 646 (1943) (dissenting).
648 Cohens v. Virginia, 6 Wheat, (19 U.S.) 264, 378 (1821).
649 M. Farrand, op. cit., n. 1, 22, 211–212, 220, 244; 2 id., 146–147, 186–187.
650 Id., 423–424, 430, 431.
651 1 Stat. 73 . The district courts were given cognizance of “suits for penalties and forfeitures incurred, under the laws of the United States” and “of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States. . . .” Id., 77. Plenary federal question jurisdiction was conferred by the Act of February 13, 1801, Sec. 11, 2 Stat. 92 , but this law was repealed by the Act of March 8, 1802, 2 Stat. 132 . On Sec. 25 of the 1789 Act, providing for appeals to the Supreme Court from state court constitutional decisions, see supra, n.582.
652 Act of April 10, 1790, Sec. 5, 1 Stat. 111 , as amended, Act of February 21, 1793, Sec. 6, 1 Stat. 322 (suits relating to patents). Limited removal provisions were also enacted.
653 Act of April 9, 1866, Sec. 3, 14 Stat, 27; Act of May 31, 1870, Sec. 8, 16 Stat. 142 ; Act of February 28, 1871, Sec. 15, 16 Stat. 438 ; Act of April 20, 1871, §§ 2, 6, 17 Stat. 14, 15 .
654 Act of March 3, 1875, Sec. 1, 18 Stat. 470 , now 28 U.S.C. Sec. 1331 (a). The classic treatment of the subject and its history is F. Frankfurter & J. Landis, op. cit., n. 12.
655 For a brief summary, see Hart & Wechsler, op. cit., n.250, 960–966.
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