John Q. Barrett: Justices on Fidelity to Precedent

[John Q. Barrett is professor of law at St. John's University School of Law.]

Last week, the Supreme Court decided in Citizens United v. Federal Election Commission (click here) that a corporation’s political electioneering expenditures are protected by the First Amendment. The Court thus invalidated federal statutory limits on such expenditures and explicitly overruled two earlier decisions that had declared that such laws were constitutional.

Because a foundational principle of sound judging is stare decisis (fidelity to precedent), the Supreme Court endeavored in Citizens United to explain its rejections of its prior decisions. Justice Anthony Kennedy, writing for the Court, described the principal prior decision as, for various reasons, not sufficiently long-lived, well-reasoned, workable or a source of reliance interests that should be respected. He, joined by four other justices, thus concluded that it should be overruled (Majority, pp. 47-50). (Justice John Paul Stevens, writing in dissent for himself and three other justices, responded powerfully to each of Justice Kennedy’s claims (Dissent, pp. 17-23).)

Chief Justice John G. Roberts, Jr., who joined Justice Kennedy’s opinion, also wrote his own concurring opinion. With regard to stare decisis, Roberts explained, correctly, that any judicial decision to follow a past decision even though it now appears to be wrong is a policy determination. According to the Chief Justice (Concurrence, pp. 6-7):

When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right. As Justice Jackson explained, this requires a “sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of the practical effects of one against the other.” Jackson, Decisional Law and Stare Decisis, 30 A.B.A.J. 334 (1944).

The Chief Justice then identified the “greatest purpose” of stare decisis as service to “a constitutional ideal—the rule of law. It follows,” he asserted,

that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent (p. 7).

With regard to the principal prior decision being reconsidered in Citizens United, the Chief Justice then argued that it does such damage and thus should be reversed (pp. 8-14).

Chief Justice Robert’s argument that judges should strike the balance against stare decisis and reject precedents they regard as harmful to “the rule of law” is a vague statement of broad power. In future cases, it might be used to justify many reversals of past precedents.

The possibility of judicial zeal for such developments is quite contrary to the perspective that Justice Jackson expressed in the 1944 speech that Chief Justice Roberts quoted briefly in Citizens United. In that speech, Jackson deplored what he described as stare decisis’s “anemic condition.” (Controversies over stare decisis are nothing new—they are, by definition, almost as old as courts themselves.) Jackson, in the passage that preceded immediately the line that Chief Justice Roberts quoted last week, stated his general position—his inclination toward precedent—quite plainly and powerfully:

I cannot believe that any person who at all values the judicial process or distinguishes its method and philosophy from those of the political and legislative process would abandon or substantially impair the rule of stare decisis. Unless the assumption is substantially true that cases will be disposed of by application of known principles and previously disclosed courses of reasoning, our common law process would become the most intolerable kind of ex post facto judicial law-making. Moderation in change is all that makes judicial participation in the evolution of the law tolerable. Either judges must be fettered to mere application of a legislative code with a minimum of discretion, as in continental systems, or they must formulate and adhere to some voluntary principles that will impart stability and predictability to judicial discretion. To overrule an important precedent is serious business.

Justice Stevens might well have drawn, in his Citizens United dissenting opinion, on Justice Jackson’s reflections.

The full text of Justice Jackson’s 1944 speech, which addressed stare decisis and other topics, is below. Thanks as always for your interest, and please share this with others who also might be interested.