Stare Decisis as Authority and Aspiration

Abstract

The doctrine of stare decisis remains a defining feature of American law despite challenges to its legitimacy and efficacy. Even so, there is space between the role that stare decisis currently plays and the potential that it offers. The gap is evident in the jurisprudence of the U.S. Supreme Court. Though the Justices continue to underscore the fundamental status of stare decisis, the Court’s opinions sometimes seem quick to depart from precedents whose reasoning has fallen out of favor.

Using Bivens v. Six Unknown Named Agents as a case study, this Article explains how the Court can invigorate the doctrine of stare decisis in pursuit of a stable and impersonal rule of law. Viewed against the backdrop of modern interpretive philosophy, Bivens might well be anachronistic. Yet by committing themselves to precedents of precisely that sort, the Justices can demonstrate that changes in judicial personnel—and attendant shifts in the prevailing winds of legal theory—do not always translate into changes in the law.

Keywords: precedent, stare decisis, supreme court, bivens