Perhaps the first thing law students learn is the concept of judicial precedent. Once an appellate court decides an issue of law, the court’s decision binds not only lower courts but also the same court in future cases. Lawyers use the shorthand expression “stare decisis” to describe this concept.
A classic example of stare decisis comes from a lawsuit brought by the Federal League, which had started a new major league baseball league in 1914. When the Federal League failed, it brought an antitrust lawsuit claiming the American and National Leagues had conspired to drive it out of business. In a 1922 decision, however, the United States Supreme Court ruled that baseball was not “commerce” and therefore was not covered by the antitrust laws.
Fifty years later, the Court applied the precedent to an antitrust lawsuit brought by Saint Louis Cardinals outfielder Curt Flood. Flood said Major League Baseball’s rules violated the antitrust laws because they barred him from being a free agent and selling his services to the highest bidder. The Supreme Court dismissed the lawsuit, standing by its old decision on stare decisis grounds although courts had ruled that the antitrust laws covered many other professional sports.
Stare decisis is not a hard-and-fast rule. Since 2000, the Supreme Court has overruled one of its decisions twenty-five times, an average of a little more than one per year.
In a recent case holding that states have immunity from lawsuits in the courts of other states, the Supreme Court overruled a 40-year old precedent that had held to the contrary.
The Court majority had cited the poor quality of the previous decision’s reasoning and its inconsistency with related decisions, but this is just a lawyerly way of saying the Court disagreed with the old decision. After all, the justices from forty years ago surely did not think their decision was poorly reasoned or inconsistent with related cases.
What seemed to most motivate the majority were legal changes since the previous decision. But how much change must occur to justify overruling a precedent? It cannot be that there are simply a majority of judges who now want to rule differently. Stare decisis would not have any meaning if courts only follow an old decision when they agree with it currently.
Any discussion about stare decisis today necessarily implicates Roe v. Wade. Given the pliability of the stare decisis doctrine, a Supreme Court majority that wanted to overrule Roe would have little difficulty justifying its decision.
Roe is a constitutional decision, and courts are often more willing to overturn precedent on interpretation of the Constitution. On an issue of statutory interpretation, the legislative and executive branches can pass a new law to overturn a court decision. A constitutional decision can only be changed by a constitutional amendment, which is more difficult to do but has happened six times.
Some constitutional theorists have argued that certain cases like Marbury v. Madison or Brown v. Board of Education—and perhaps even Roe—should be “super-precedents,” so deeply embedded in our law that the Court should never revisit them. In the 1992 decision of Planned Parenthood v. Casey, the Supreme Court extensively discussed and applied stare decisis to Roe. At his confirmation hearings, Chief Justice Roberts acknowledged Casey as precedent itself about the stare decisis value of Roe.
Judges always can limit a precedent without overruling it. For example, courts limited the Federal Baseball decision by saying it was only about professional baseball and not professional sports generally. This allows the court to claim they are following stare decisis while limiting the effect of an old decision the court doesn’t like. Many observers believe that, at least in the short-term, the Court will chip away at Roe in a similar way.