Academic

Roberts Concurrence in Citizens United & Stare Decisis

By Lawrence Solum

"... if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent?s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent?s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake." (slip op., pp. 7-8).

"To the extent that the Government?s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court?s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect."

Hat tip to Steven Lichtman, for his observation that the "hotly contested" language seems new.  I would it add that it may be in deep tension with Casey.

Full post as published by Legal Theory Blog on January 21, 2010 (boomark / email).