With the June 24 decision in Dobbs v. Jackson Women's Health Organization, which overturns the landmark 1973 abortion decision in Roe v. Wade, the doctrine of stare decisis has fueled debate over the extent to which the U.S. Supreme Court is bound by legal precedent.
Stare decisis is a Latin term that means “to stand by things decided.” As an ABA Legal Fact Check posted June 10 points out, for the Supreme Court to overturn a prior decision is neither commonplace nor rare. A 2018 report by the Congressional Research Service (CRS) found that the court has reversed itself 141 times, or on average less than once a year since the first in 1851. Since the CRS report was issued, the court has overturned a handful of its prior decisions.
“The Supreme Court applies the doctrine of stare decisis by following the rules of its prior decisions unless there is a ‘special justification’ — or, at least, ‘strong grounds’ — to overrule precedent,” the CRS report said. Those grounds include society’s reliance on precedent, whether the precedent defies practical workability or is a remnant of an abandoned doctrine, and whether it is based upon facts that have changed so significantly that the rule is no longer applicable.
The U.S. Supreme Court has often stated that following its prior decisions encourages stability and brings uniformity in the application of law to cases and litigants. Former Associate Justice Lewis Powell once remarked: “The elimination of constitutional stare decisis would represent an explicit endorsement of the idea that the Constitution is nothing more than what five justices say it is.”
The doctrine is not found in the U.S. Constitution nor in any statute but has a long tradition in English common law. In 1788, Alexander Hamilton in Federalist Paper 78 wrote, “To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents …(and) the records of those precedents must unavoidably swell to a very considerable bulk.”
As the ABA Legal Fact Check explained, stare decisis operates both horizontally and vertically. Judicial hierarchy compels lower courts to follow precedent from a higher court, and Supreme Court decisions become the law. Horizontal precedent refers to the nation’s highest court adhering to its own precedents. Most states follow the federal model for both.
- Dobbs v. Jackson Women’s Health Organization
- Congressional Research Service report (2018)
- Federalist Paper 78 (1788)
- Landmark examples of the U.S. Supreme Court overruling its prior decisions:
- Racial segregation: Brown v. Board of Education (1954), which reversed Plessy v. Ferguson (1896)
- Self-incrimination: Miranda v. Arizona (1966), which reversed Crooker v. California and Cicenia v. Lagay (both 1958)
- Criminalizing homosexuality: Texas v. Lawrence (2003), which reversed Bowers v. Hardwick (1986)
- ABA Journal stories on stare decisis