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By AndrewHyman Posted in Analysis and Predictions — Comments () / Email this page » / Leave a comment »

For anyone who wants to read a really good, thorough, in-depth article about stare decisis, I'd recommend this article that UVA Law Professor Caleb Nelson wrote in 2001. Here are a few excerpts.

American courts of last resort recognize a rebuttable presumption against overruling their own past decisions. In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current members, was demonstrably erroneous. But when the Supreme Court makes similar noises today, it is roundly criticized. At least within the academy, conventional wisdom now maintains that a purported demonstration of error is not enough to justify overruling a past decision.
....
[T]he conventional wisdom is wrong to suggest that any coherent doctrine of stare decisis must include a presumption against overruling precedents that the current court deems demonstrably erroneous. The doctrine of stare decisis would indeed be no doctrine at all if courts were free to overrule a past decision simply because they would have reached a different decision as an original matter. But when a court says that a past decision is demonstrably erroneous, it is saying not only that it would have reached a different decision as an original matter, but also that the prior court went beyond the range of indeterminacy created by the relevant source of law.

I agree entirely with Professor Nelson, and so did the whole American legal establishment during much of this country's history:

Americans from the Founding on believed that court decisions could help "liquidate" or settle the meaning of ambiguous provisions of written law. Later courts generally were supposed to abide by such "liquidations" .... To the extent that the underlying legal provision was determinate, however, courts were not thought to be similarly bound by precedents that misinterpreted it.
....
Of the Court's current members, Justices Scalia and Thomas seem to have the most faith in the determinacy of the legal texts that come before the Court. It should come as no surprise that they also seem the most willing to overrule the Court's past decisions....Prominent journalists and other commentators suggest that there is some contradiction between these Justices' mantra of "judicial restraint" and any systematic re-examination of precedents. But if one believes in the determinacy of the underlying legal texts, one need not define "judicial restraint" solely in terms of fidelity to precedent; one can also speak of fidelity to the texts themselves.

So, let's hope that the next nominee believes that demonstrably erroneous interpretations of text are not entitled to much protection under the doctrine of stare decisis. Demonstrably erroneous interpretations of constitutional law are especially dangerous, because they can't be corrected by legislation.

UPDATE: Here's a February 2006 article about Nelson.