Volume 104 Issue 1 Article 8 September 2001 Stare Decisis as a Constitutional Requirement Thomas Healy Sidley Austin Brown & Wood Follow this and additional works at: https://researchrepository.wvu.edu/wvlr Part of the Common Law Commons, Constitutional Law Commons, and the Legal History Commons Recommended Citation Thomas Healy, Stare Decisis as a Constitutional Requirement, 104 W. Va. L. Rev. (2001). Available at: https://researchrepository.wvu.edu/wvlr/vol104/iss1/8 This Article is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact [email protected]. Healy: Stare Decisis as a Constitutional Requirement STARE DECISIS AS A CONSTITUTIONAL REQUIREMENT Thomas Healy Is the rule of stare decisis a constitutional requirement, or is it merely a judicial policy that can be abandoned at the will of the courts? This question, which goes to the heart of the federal judicial power, has been largely over- looked for the past two centuries. However, a recent ruling that federal courts are constitutionally required to follow theirprior decisions has given the ques- tion new significance. The ruling, issued by a panel of the United States Court of Appeals for the Eighth Circuit,argues that stare decisis was such an established and integralfeature of the common law that the founding generation regarded it as an inherent and essential limit on judicialpower. Therefore, when the Consti- tution vested the 'Judicial Power of the United States" in the federal courts, it necessarily limited them to a decision-making process in which precedent is presumptively binding. This Article challenges that claim. By tracing the history of precedent in the common law, it demonstrates that stare decisis was not an established doc- trine by 1789, nor was it viewed as necessary to check the potential abuse of judicial power. The Article also demonstrates that even if stare decisis is consti- tutionally required, the courts are not obligated to give prospective precedential effect to every one of their decisions. Stare decisis is not an end in itself, but a means to serve important values in a legal system. And those values can be equally well served by a system in which only some of today's decisions will be binding tomorrow. Associate, Sidley Austin Brown & Wood, Washington D.C.; J.D., Columbia, 1999; Law Clerk to Judge Michael Hawkins on the United States Court of Appeals for the Ninth Circuit, 1999-2000. I am grateful for the helpful comments of Vincent Blasi, Michael Doff, Mark Feldman, Banu Ramachandran, Seetha Ramachandran, Lara Shalov, and Peter Strauss and for the fine editorial work of Rob Alsop. I owe special thanks to Arlene Chow for extensive help in for- mulating and articulating the arguments that follow. Disseminated by The Research Repository @ WVU, 2001 1 West Virginia LawWEST Review, VIRGINIA Vol. 104,LA W Iss. REVIEW 1 [2001], Art. 8 [Vol. 104 INTRODUCTION ..................................................................................44 I. STARE DECISIS AND THE COMMON LAW TRADITION ........................54 A. Case Law in Medieval England ............................................56 B. The Growing Role of Precedentand the Influence of Sir Edward Coke ..............................................................62 C. Blackstonian Conservatism v. Mansfield's Reformism ......66 D. Precedent in Colonial America: A New Land and New Values .....................................................................73 E. The Post-RevolutionaryAttitude Toward Precedent............ 78 F. The HistoricalEvidence Summarized ...................................88 II. STARE DECISIS AS A STRUCTURAL CHECK .......................................91 A. The Least DangerousBranch ............................................... 93 B. "All the Usual and Most Effectual Precautions"................. 97 C. The Wrong Kind of Check .......................................................101 III. NON-PRECEDENTIAL DECISIONS AND THE VALUES OF STARE D ECISIS .....................................................................................106 A. The Values Served by Adherence to Precedent....................... 108 B. Non-Precedential Opinions and the Rule of Disposition........ 111 C ON CLU SIO N ........................................................................................120 INTRODUCTION When a court is faced with a legal question, one of the first points it considers is whether it has addressed a similar issue in the past. If so, the court will usually follow one of two paths: It will either adhere to the prior decision and apply it to the current dispute or distinguish the two cases and adopt a new rule. The court will rarely overrule the earlier decision, and then only if there are exceptional reasons for doing so.' This practice of deciding cases by reference and adherence to the past is one of the defining characteristics of Anglo- American jurisprudence and distinguishes our system from the civil law, where judges reason from general principles, not from precedents.2 It is a practice so fixed in our legal institutions that most of us cannot envision the courts deciding cases in any other way. But are the courts required to follow this practice? Does the Constitution mandate a rule of stare decisis, or is it simply a judicial policy that can be altered or discarded when the need arises? This question, which seems so obvious and fundamental, has largely gone unaddressed for the past 212 years. The Supreme Court has occasionally debated the workings of stare decisis, such as under what conditions a past deci- I See infra notes 41-42 and accompanying text. 2 See JAMES W. TUBBS, THE COMMON LAW MIND: MEDIEVAL AND EARLY MODERN CONCEPTIONS, 17, 179 (2000). https://researchrepository.wvu.edu/wvlr/vol104/iss1/8 2 Healy: Stare Decisis as a Constitutional Requirement 20011 STARE DECISIS sion can be overruled.3 However, these debates have concerned the strength of the presumption that precedent is binding, not whether the presumption itself is a constitutional requirement. 4 The academic literature has been similarly silent. Although a few scholars have touched on the issue casually, no one has seri- ously examined whether stare decisis is dictated by the Constitution.5 In the wake of a recent court decision, however, this question has be- come vitally important. In Anastasoff v. United States,6 a panel of the United States Court of Appeals for the Eighth Circuit ruled that the court's practice of issuing unpublished opinions that cannot be cited as precedent violates Article HI of the United States Constitution.7 The decision, written by Judge Richard S. Arnold, argues that stare decisis was such an established and integral feature of the common law that it was implicit in the founding generation's understanding of what it meant to exercise judicial power.8 Therefore, Judge Arnold argues, when the Constitution vested "the judicial Power of the United States" 9 in the federal courts, it necessarily limited them to a decision-making process in which precedent is binding.'0 Judge Arnold does not claim that courts can never over- rule past cases," but when they do, he asserts, they must justify their actions 3 See infra notes 56-59 and accompanying text. 4 For instance, the Court has stated on several occasions that stare decisis is not "an inexorable command." E.g., Agostini v. Felton, 521 U.S. 203, 235-36 (1997). However, this does not necessarily imply that courts are free to abandon the presumption that precedent is binding. It could mean only that the presumption itself is not inexorable. In other words, al- though the Court has concluded that stare decisis does not require absolute adherence to prece- dent, it has left open the question of whether this less-than-absolute doctrine of stare decisis is nonetheless constitutionally required. One of the first scholars to broach the issue was Henry Monaghan, who speculated in 1988 that perhaps "the principle of stare decisis inheres in the 'judicial power' of article III." Henry Paul Monaghan, Stare Decisis and ConstitutionalAdjudication, 88 COLUM. L. REV. 723, 754-55 (1988). Six years later, another professor argued that stare decisis is in fact unconstitu- tional, at least in cases raising constitutional issues. See Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23 (1994). Most recently, a third writer asserted that stare decisis is a "judicial policy" that is "not grounded in the Constitution." Mi- chael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Prece- dential Effect of Roe and Casey?, 109 YALE L.J. 1535, 1548 (2000). This conclusion was based on the Court's statements that "stare decisis is not an inexorable command." Id. However, as I have explained, these statements leave open the possibility that a less-than-absolute doctrine of stare decisis is constitutionally required. See supra note 4. 6 223 F.3d 898 (8th Cir. 2000), vacated as moot, Anastasoff v. United States, 235 F.3d 1054 (8th Cir. 2000) (en banc). 7 See id. at 905. 8 See id. at 900-904. 9 U.S. CONST. art. III., § 1, cl. 1. 10 See Anastasoff, 223 F.3d at 904-05. "1 See id. Disseminated by The Research Repository @ WVU, 2001 3 West Virginia LawWEST Review, VIRGINIA Vol. 104,LAW Iss. REVIEW 1 [2001], Art. 8 [Vol. 104 through reasons that are "convincingly clear."' 2 And