Stare Decisis

The common law works only if courts treat past decisions as rules for the future. The doctrine that makes them do so has a Latin name.

Key idea

Stare decisis ("to stand by things decided") means courts follow precedent. Vertical stare decisis: lower courts must follow the decisions of higher courts in their system. Horizontal stare decisis: a court usually follows its own earlier decisions, but it may overrule them for strong reasons.

Vertical stare decisis: a federal court of appeals binds the district courts below it (in its own circuit).

Why it works

Why follow precedent even when a judge thinks it is wrong? Four reasons are usually given. Predictability: people can plan when they know how courts will rule. Equal treatment: like cases are decided alike, whoever the judge is. Efficiency: courts need not reargue every question in every case. Legitimacy and restraint: the law looks less like the preference of whoever is on the bench. The cost is that an error can last. So the vertical rule is strict (a trial judge may not ignore the state supreme court), while the horizontal rule is a strong presumption, not an absolute command.

	Vertical	Horizontal
Who is bound	lower courts in the same system	the same court (and, in many systems, other panels of it)
How strict	mandatory: a lower court may not overrule a higher court	a strong presumption; the court may overrule itself
Example	a federal district court in Ohio follows the Sixth Circuit and the Supreme Court	the Supreme Court follows its own past rulings unless it decides to overrule one

Worked example: A trial judge who disagrees

A state trial judge thinks a ruling of her state's supreme court is badly reasoned. May she decide the case the other way?

This is vertical stare decisis: the state supreme court is above her in the same system.
She must follow it. She may write that she disagrees and explain why, which may help the higher court reconsider.
Only the state supreme court (or the legislature, for a statutory ruling) can change the rule.

Answer: No. She must follow the higher court's precedent.

Worked example: A high court changes its mind

In 1940 the Supreme Court upheld a public school's required flag salute (Minersville School District v. Gobitis). In 1943 it struck down such a requirement in West Virginia State Board of Education v. Barnette. How could it?

Horizontal stare decisis is a presumption, not an absolute rule.
In Barnette the Court concluded Gobitis was wrongly reasoned and overruled it.
From then on, lower courts were bound by Barnette.

Answer: The Court overruled its own precedent, which horizontal stare decisis allows for strong reasons.

Judges and scholars disagree about how much weight precedent deserves. Some stress that stability and reliance are themselves important values, especially when people have built their lives and businesses around a rule. Others argue that a precedent clearly wrong about the Constitution deserves less weight, because the Constitution, not the earlier decision, is the supreme law. The Court has also said precedents interpreting statutes deserve extra respect, since Congress can change a statute if it disagrees with the Court's reading.

Common mistake

Thinking a court may never depart from its own precedent. Vertical stare decisis is strict, but horizontal stare decisis can be overcome, and the Supreme Court has overruled itself many times (for example, Brown v. Board of Education rejected Plessy's "separate but equal" for public schools). Check: is the precedent from a higher court (must follow) or the same court (presumption, may overrule)?

This is an educational course, not legal advice.

Stare Decisis

Practice

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Sources and further reading