Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court
The Supreme Court's doctrine of stare decisis has been variously condemned as a "backwater of the law," "a mask hiding other considerations," and a matter of "convenience, to both conservatives and liberals," whose "friends... are determined by the needs of the moment." Some critics presume that the unprincipled state of the doctrine is the product of a relatively recent process of deterioration. Justice Scalia, for one, has complained that the past decades have been "marked by a new found disregard for stare decisis:" As one commentator calculated, "[bly 1959, the number of instances in which the Court had reversals involving constitutional issues had grown to sixty; in the two decades which followed, the Court overruled constitutional cases on no less than forty-seven occasions." It was an era when this Court cast overboard numerous settled decisions, and indeed even whole areas of law, with an unceremonious "heave-ho."
Almost a century ago, one commentator lauded the eventual disappearance of the doctrine of stare decisis as "the inevitable course of human progress." Since then, some scholars have asserted, with little or no historical analysis, that this prophecy has been fulfilled, and that the Supreme Court's standards of stare decisis have substantially deteriorated. To paraphrase Justice Scalia, the Justices of the early Supreme Court are thought to have jettisoned past decisions only after solemn and careful consideration of certain strict guiding principles of precedent, whereas current members of the Court are seen as participating in an "unceremonious 'heave-ho'" of both the prior decisions and the previously applicable standards of stare decisis. Indeed, Scalia has subsequently suggested that "the doctrine of stare decisis has appreciably eroded" in the modern era. Scalia's statistical assertion is undoubtedly accurate. There is no question that the Justices in the latter part of the twentieth century have "cast overboard" significantly more "settled decisions" than their predecessors. Absent further analysis, however, this explanation for the statistical phenomenon seems less than obvious. For one thing, today's vast body of constitutional case law presents an ever-expanding target of "settled decisions" that may affect the issues that come before the Court. Whereas the Court in Chief Justice Marshall's day consistently wrote on a clean slate as it addressed fundamental questions of constitutional law, today's Court routinely is faced with the task of reconciling or distinguishing prior decisions.