Home > Journals > St. John's Law Review > Vol. 98 > No. 7
Document Type
Symposium
Abstract
(Excerpt)
“[S]tare decisis is ‘not an inexorable command.’ ” Frankly, every time I read these words in a judicial opinion of late, I shudder. And, in fact, it seems like I am reading these words— and shuddering—with increasing regularity.
First off, of course it is not. At times, the Supreme Court has sanctioned manifest injustices in the law. The prime example is the Court’s 1896 decision in Plessy v. Ferguson, which sustained racial segregation under the Fourteenth Amendment. With the blessing of the judiciary, this interpretation of the Reconstruction Constitution supported a regime of racial segregation until, more than a half century later, the Court effectively overruled that precedent and the reprehensible “separate but equal” doctrine in Brown v. Board of Education. So, yes, stare decisis is not an inexorable command. Still, it is a command. And because it is not inexorable but a command nevertheless, we employ a test to decide when it is legally justifiable to proclaim some prior Court ruling to be of diminished value or erroneous and, therefore, that we should no longer abide by it. The test talks about the quality of the earlier reasoning and changes in underlying factual assumptions. It talks about how the Court has decided similar or analogous questions and the practical workability of the present paradigm in light of evolution in the same area of law. It talks about reliance interests, social and economic hardships, and the costs of repudiating precedent. As a legal doctrine, stare decisis has a corresponding test that talks about all of these things. If these considerations all start pointing one way—against the prevailing rule—then, according to the test, perhaps the earlier Court had gotten it wrong.