Justices on the United States Supreme Court follow various approaches to stare decisis. Besides the newly added Justice Ketanji Brown Jackson, every one of the last forty-eight Justices stretching back to Chief Justice Taft has voted to overrule a precedent. Despite this consistency, there is not a unified framework that Justices apply when deciding whether to overrule incorrect decisions. This lack of consistency prompted Justice Alito in his dissent in Ramos v. Louisiana to highlight the importance for the Justices to have a single approach to overruling precedent. Similarly, Justice Kavanaugh has drawn attention to the lack of a unified stare decisis framework in his Ramos concurrence, in which he proposed a three-pronged approach. With the rise of the so-called “conservative majority” in 2020, a clearly stated approach to overruling precedent is timely and relevant because that majority will likely be presented with several opportunities to overrule precedents with which they do not agree. For example, in Dobbs v. Jackson Women's Health Organization, Justice Thomas's concurrence and the dissent highlighted some cases based on substantive due process that the Court may look to revisit next in light of the Dobbs reasoning. Justice Alito's Dobbs majority attempted to distinguish those cases from Roe and Casey on the ground that they did not involve a “potential life.” Without a unified approach to stare decisis and deciding to overturn precedent, it is unclear how that distinction will affect the Justices' decision to overturn precedent. The Court's approach to stare decisis needs some adjusting if there is going to be reasonable predictability regarding the overruling of Supreme Court precedents in the coming years. The main goal of this Article is to offer a modified approach to overruling.
About the Authors
Santiago Legarre, Professor of Law, Pontificia Universidad Católica Argentina and CONICET (Consejo Nacional de Invesigaciones Cientificas y Tecnicas, Argentina); Visiting Professor of Law, Notre Dame Law School, LSU Law Center, and Strathmore University Law School (Kenya).
Andrew Chenevert, J.D./D.C.L. Louisiana State University, Paul M. Hebert Law Center. Associate of Holland & Knight in Houston, Texas.
Citation
98 Tul. L. Rev. 591