Notre Dame Law School NDLScholarship Journal Articles Publications 2013 Precedent and Jurisprudential Disagreement Amy Coney Barrett Notre Dame Law School,
[email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Jurisprudence Commons Recommended Citation Amy C. Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711 (2012-2013). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/293 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact
[email protected]. Precedent and Jurisprudential Disagreement Amy Coney Barrett* Introduction Over the years, some have lamented the Supreme Court's willingness to overrule itself and have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule.' In this Article, I point out that one virtue of the weak presumption is that it promotes doctrinal stability while still accommodating pluralism on the Court. Stare decisis purports to guide a justice's decision whether to reverse or tolerate error, and sometimes it does that. Sometimes, however, it functions less to handle doctrinal missteps than to mediate intense disagreements between justices about the fundamental nature of the Constitution.2 Because the justices do not all share the same interpretive methodology, they do not always have an agreed-upon standard for identifying "error" in constitutional cases. Rejection of a controversial precedent does not always mean that the case is wrong when judged by its own lights; it sometimes means that the justices voting to reverse rejected the interpretive premise of the case.