Comment by Julie E. Payne
Stare decisis is the policy of the courts to abide by previous decisions when revisiting previously adjudicated points of law. But as the United States Supreme Court's recent and controversial opinion in Lawrence v. Texas illustrates, this policy is not inflexible. In Lawrence, the Court invalidated a Texas statute that criminalized sexual intercourse between two men—and, in doing so, overruled its previous judgment that such antisodomy statutes did not violate the Constitution. The Court's decision has sparked a firestorm of criticism from conservatives, both on the Court and in the public, and fueled allegations that the Court has thrown its lot in with gay rights advocates in the perceived “culture war.” This Comment outlines the history of the court's use of stare decisis regarding constitutional rights and then examines Lawrence and the majority's treatment of precedent as it overruled Bowers v. Hardwick. In conclusion, the author humbly proposes that such departures from stare decisis as Lawrence would be better insulated from allegations of arbitrariness and politicism if the Court adopted a more uniform approach to overturning precedents, an example of which may be found in the framework of analysis developed by the joint opinion in Planned Parenthood v. Casey.
About the Author
Julie E. Payne. J.D. candidate 2004, Tulane University School of Law; B.A. 2001, University of Texas, Austin.
Citation
78 Tul. L. Rev. 969 (2004)