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ArtIII.S1.7.2.1 Historical Background on Stare Decisis Doctrine

Article III, Section 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Stare decisis, Latin for “to stand by things decided,” 1 is a judicial doctrine under which a court follows the principles, rules, or standards of its prior decisions (or decisions of higher tribunals) when deciding a case with arguably similar facts.2 The doctrine of stare decisis has “horizontal” and “vertical” aspects. A court adhering to the principle of horizontal stare decisis will follow its own prior decisions absent exceptional circumstances (e.g., the Supreme Court follows a precedent unless it has become too difficult for lower courts to apply).3 By contrast, vertical stare decisis binds lower courts to follow strictly the decisions of higher courts within the same jurisdiction (e.g., a federal court of appeals must follow the decisions of the U.S. Supreme Court, the federal court of last resort).4

The doctrine of stare decisis in American jurisprudence has its roots in eighteenth-century English common law. In 1765, the English jurist William Blackstone described the doctrine of English common law precedent as establishing a strong presumption that judges, to promote stability in the law, would “abide by former precedents, where the same points come again in litigation” unless such precedents were “flatly absurd or unjust.” 5 At least some of the Constitution’s Framers favored judges’ adherence to judicial precedent because it limited judges’ discretion to interpret ambiguously worded provisions of law. For example, writing in the Federalist No. 78 during the debates over adoption of the Constitution in an essay addressing concerns about judicial power, Alexander Hamilton argued that courts should apply precedent to prevent judges from having unbounded discretion to interpret ambiguous legal texts.6

During Chief Justice John Marshall’s tenure in the early 1800s, the newly created Supreme Court combined a strong preference for adhering to precedent with a “limited notion of error correction” when precedents had been eroded by subsequent decisions7 or were “premised on an incomplete factual record.” 8 The early Court was reluctant to overrule prior decisions when doing so would upset commercial reliance interests (e.g., precedents concerning matters of property or contract law).9

The full Latin phrase is “stare decisis et non quieta movere—stand by the thing decided and do not disturb the calm.” See James C. Rehnquist, Note, The Power That Shall Be Vested in a Precedent: Stare Decisis, The Constitution, and the Supreme Court, 66 B.U. L. Rev. 345, 347 (1986). back
Stare Decisis, Black’s Law Dictionary (10th ed. 2014) (defining “stare decisis” as “the doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation” ); Precedent, Black’s Law Dictionary (10th ed. 2014) (defining “precedent” as “a decided case that furnishes a basis for determining later cases involving similar facts or issues” ). This essay does not examine the Supreme Court’s reliance on the precedents of state court or foreign tribunals. It also does not examine how the Court determines whether a particular sentence in an opinion is a binding holding necessary to the decision for purposes of stare decisis or, rather, non-binding obiter dictum. See generally Obiter dictum, Black’s Law Dictionary (9th ed. 2009) (defining “obiter dictum” as a “judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive)” ). back
Horizaontal stare decisis, Black’s Law Dictionary (10th ed. 2014) (defining “horizontal stare decisis” as “the doctrine that a court . . . must adhere to its own prior decisions, unless it finds compelling reasons to overrule itself” ). back
SeeVertical stare decisis, Black’s Law Dictionary (10th ed. 2014) (defining “vertical stare decisis” as “the doctrine that a court must strictly follow the decisions handed down by higher courts within the same jurisdiction” ). back
1 William Blackstone Commentaries on the Laws of England 69–70 (describing precedent as “a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments” ). back
Federalist No. 78, at 439 (Clinton Rossiter ed., 1999) ( “To avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them . . . .” ). Historical sources provide only limited insight into the Founders’ views on stare decisis, and it is unclear whether Alexander Hamilton was referring to the presumption that a court should adhere to its own prior decisions or, rather, those of higher tribunals. Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647, 664 (1999). Other Founders held similar views on the benefits of precedent. See, e.g., 1 Diary and Autobiography of John Adams 167–68 (L.H. Butterfield, ed., 1961) (draft of Nov. 5, 1760) ( “[E]very possible Case being thus preserved in Writing, and settled in a Precedent, leaves nothing, or but little to the arbitrary Will or uninformed Reason of Prince or Judge.” ). See also Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 9 (2001) ( “[C]oncern about such discretion was a common theme throughout the antebellum period; in one form or another, it shaped most antebellum explanations of the need for stare decisis.” ). But see Letter from James Madison to C.E. Haynes (Feb. 25, 1831), reprinted in 9 The Writings of James Madison 443 (Gaillard Hunt ed., 1910) ( “That cases may occur which transcend all authority of precedents must be admitted, but they form exceptions which will speak for themselves and must justify themselves.” ). back
See, e.g., Gordon v. Ogden, 28 U.S. (3 Pet.) 33, 34 (1830) (involving statutory construction). back
Lee, supra note 6, at 681–87, 734. See, e.g., United States v. Percheman, 32 U.S. (7 Pet.) 51, 88–89 (1833). back
See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819) ( “[A]n exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.” ). See also Lee, supra note 6, at 691. back