Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court

Abstract

Today's Court has been criticized for eschewing important commercial issues in favor of high-profile questions of constitutional significance. It should hardly be surprising that a Court that devoted its attention to cases involving property rights would maintain a relatively stable body of precedent in comparison to a Court that now focuses more substantially on questions of constitutional law. These and other factors could explain the twentieth-century Court's increasing tendency to overrule its prior decisions, even if the prevailing doctrine of stare decisis had remained relatively constant.

Without the baggage of an implication from statistics, the stage is set for an examination of the premise that the Supreme Court's principles of precedent have been significantly loosened in recent decades. This Article examines that heretofore unexplored premise by tracing the primary aspects of the Rehnquist Court's doctrine of stare decisis from founding-era commentary to their origins in decisions of the Supreme Court.

After an initial summary of the Rehnquist Court's stare decisis standards in Part II, this Article traces three principal strands of the modern Court's overruling rhetoric from founding-era commentary to their initial applications in decisions of the Supreme Court. For the most part, this Article concludes that the modern muddle over stare decisis has been with us since the founding era. Thus, whereas the Rehnquist Court has often equivocated about its power to overturn precedent based on a current perception of error, Part III first establishes that similar doctrinal tensions trace their origins to early American commentary and to decisions of the Marshall Court. Second, although the Rehnquist Court's notion that stare decisis is most powerful in cases involving vested property rights is sometimes challenged as ahistorical, Part IV identifies founding-era commentary on this issue and traces its application in early Supreme Court decisions. Finally, Part V identifies one strand of the Rehnquist Court's overruling rhetoric that is a product of the twentieth century.

Keywords: Stare decisis, precedent, error correction, Marshall Court, Taney Court, Rehnquist Court, declaratory theory, binding precedent, overruling decisions, rules of property, reliance interests, constitutional/statutory dichotomy