Stare decisis is a legal principle that compels a court of law to follow established precedents when ruling on cases concerning similar issues and circumstances. It is a Latin term that means “to stand by the things that have been decided.” In practice, it means that a court of law should adhere to the ruling from a previous case when faced with similar cases.
Stare Decisis History
Although it’s impossible to pinpoint the exact moment this doctrine of precedent was first established, it emerged from a desire for continuity and certainty in the law dating back to the 14th century. Common law courts in England and the United States have conventionally followed the stare decisis principle, differentiating them from civil law systems.
Common law courts follow their own previous rulings or base them on the decisions of higher courts (e.g., the Supreme Court or a federal court of appeals). This saves the court time and money, since following a set precedent when making judicial decisions means the court proceedings are much shorter. This practice was transferred to the United States from England, and it is the defining feature of the American judicial infrastructure.
However, this doctrine isn’t always followed to the letter. For example, as far back as medieval England, common law courts decided against precedents they regarded as “bad law,” because there were no reliable written reports of these cases, or they felt the rulings did not apply to the matter at hand.
The Purpose of Stare Decisis
One of the primary purposes of this doctrine is to ensure continuity, uniformity, and certainty in the law. Rulings should be made according to precedent to ensure fairness and consistency and to promote judicial efficiency (i.e., save time and money).
Also, since cases are judged based on prior precedents, the judiciary is somewhat protected from external political or personal attacks or bias based on personal interest. This reinforces the belief that common law court judgments are solely based on legal and neutral considerations, making it easier to achieve legal and policy goals.
Additionally, the principle of stare decisis ensures that individuals with similar cases are treated the same way and that judges in lower courts do not make rulings that are out of line with those established by higher courts.
There are two types of applications of this rule: Vertical stare decisis ensures that lower courts adhere to precedents established by courts above them in the hierarchy of the same court system. On the other hand, horizontal stare decisis ensures a court follows its own precedents.
What Is a Precedent?
In layman’s terms, precedents are previous court decisions that serve as a benchmark for deciding on subsequent cases with identical or similar legal facts. Precedents are not formal, strict rules; rather, they serve as guides, but are usually followed fairly strictly. A precedent can be original, binding, or persuasive.
An original precedent is set when a court must make a ruling without adhering to a previous decision, most often because its court system has not encountered a prior case with similar or identical legal circumstances.
An example is the case of Employment Div. v. Smith from 1990, when the US Supreme Court set a precedent that “a state can deny unemployment benefits to a worker fired for using illegal drugs, even if used in a religious ceremony.” Two Native American employees filed for unemployment benefits in Oregon, after being fired for failing a drug test because of peyote use in a religious ceremony.
This is the most common form of precedent: Lower courts must follow the rulings made by superior courts within the same jurisdiction. Once an appellant court sets a precedent, it issues a written report that contains details of the facts, as well as the court’s decisions or rulings in the case and requires complete adherence to these precedents by lower courts.
There can be a few exceptions to binding precedents, as Supreme Court decisions are not always bound by precedents established in their respective appellant courts.
These precedents are not binding, meaning that judges do not have to adhere to them, and there is no complete reliance on them when ruling on fresh cases. However, these precedents can influence decisions made in future cases or serve as a guide when creating new precedents.
Stare Decisis vs. Precedent
We have established what a precedent is and defined stare decisis. While it might be tempting to use the terms interchangeably, they do not mean the same thing. One serves as a guide (precedent), while the other is a principle that compels one to follow said guide (stare decisis).
Here’s an example: In the hypothetical case of Miss Lavender and Miss Primrose (Lavender v. Primrose), two women living in Ohio, Miss Lavender lent a certain amount of money to Miss Primrose, with an agreement to pay it back at a specific time. Miss Primrose has defaulted on her debt and refuses to pay. Miss Lavender is insisting that not only should Miss Primose pay her back, but she should also pay interest for the long-overdue debt.
If they both end up in the Supreme Court of Ohio and the presiding judge decides that Miss Primose has to repay her debt, but with no additional interest, this case can be cited as a precedent in subsequent cases with similar circumstances. The following precedent will be ensured by stare decisis.
In other words, the doctrine of stare decisis obligates the Ohio Supreme Court to use the Lavender v. Primrose case as a precedent when making subsequent decisions regarding cases that involve a lender and borrower, where the borrower refuses to repay (horizontal stare decisis).
This also means that lower courts in Ohio within the same court system would cite this case as a precedent because it was ruled by Ohio’s Supreme Court, whose jurisdiction is superior (vertical stare decisis). However, lower courts in other states are not compelled to adhere to this precedent because they aren’t under the jurisdiction of the Ohio Supreme Court.
All courts in the US are required to adhere to the precedents of the US Supreme Court, because it is the highest court in the country, with supreme judicial power, and a judicial decision made there has the highest authority.
Overturning A Precedent
Over the past decades, there have been instances where precedents were overturned. Although it is unusual and doesn't happen often, it is possible, especially when precedents were poorly argued, badly reasoned, or simply wrong.
One of the most famous examples of reversing a precedent is the case of Brown v. Board of Education, where the Supreme Court justices collectively ruled in a civil rights case against racial segregation in public schools, after deeming it unconstitutional. This ruling overturned the “separate but equal” precedent ruled in the Plessy v. Ferguson case of 1896, which said that racially segregated public facilities were legal, so long as the facilities for African Americans people met the same standards as those meant for white Americans.
The “separate but equal” precedent stood for several decades until May 17, 1954, when it was abolished in the public education field, because segregated schools were inherently unequal and deprived students of equal protection of the laws instituted by the 14th Amendment. This was after Oliver Brown filed a class-action suit in 1951, against the Board of Education of Topeka in Kansas, because his daughter, Linda Brown, was refused entry to Topeka’s all-white elementary schools.
This case and four others involving segregation in schools were combined into a single case named “Brown v. Board of Education” in 1952. This case is often referred to as a “super-precedent” because it ended the segregation of public schools in the United States and is unlikely to be overruled or overturned.
The most recent overturning of an important precedent took place in June 2022, when the US Supreme Court overturned Roe v Wade. This landmark case initially set the precedent that the right to an abortion was a woman's constitutional right, and the full impact that this decision will have on future similar cases and the wider debate on abortion rights are yet to be seen.
Advantages of Stare Decisis
This doctrine is popular for several reasons:
Certainty and Predictability
One of the major reasons why stare decisis has amassed a lot of support is that it supposedly ensures certainty and predictability in the law, since precedents set by prior decisions in previous cases guide the decision-making process. This way, people usually know what to expect when two cases deal with similar facts.
Uniformity in Law
This doctrine also promotes uniformity in law across jurisdictions. As stated earlier, precedents set by the US Supreme Court are adhered to by lower courts across the country, and the same rulings are expected regardless of location.
Saves Time and Resources
Since they can adhere to set precedents, judges do not need to waste time reaching a decision, as they are expected to follow rulings from older cases. This fosters judicial efficiency when ruling on new issues.
Promotes Judicial Fairness
Because of the deference to set precedents, this method of judgment promotes judicial fairness in the sense that it provides protection from arbitrary discretion and the influence of external personal or political factors, as everyone knows decisions are made based on previous rulings.
Disadvantages of Stare Decisis
Stare decisis has been criticized for various reasons, as most critics believe it often does more harm than good. Below are some of the notable disadvantages of stare decisis.
While we have established that some precedents can be overturned, this is very rarely the case. The strict application of stare decisis leaves no room for minor, but often significant, differences between two similar cases. It is usually very difficult to overturn precedents even when new facts come to light.
Since new cases should follow precedents, researching older similar issues from years or decades ago can take time, as there may be tons of case files to go through.
Moreover, some cases can have dissimilar judgments; lawyers then have to determine the ratio decidendi or “rationale for the decision” of the judge(s) who ruled the previous precedents to know if the same rationale is applicable to the particular case they're working on.
Due to their nature of being set once and practically never challenged, many precedents are outdated and do not align with the modern world. Over-reliance on stare decisis impedes change as our cultures and situations evolve, as judges are used to following precedents without evaluating new facts.
And while relying on precedents is meant to discourage political or undue influence on future decisions, there is no such insurance for the rulings that constitute the original precedent.
The judges who make decisions that set these precedents are not elected, but appointed. As such, judicial decision-making is rarely considered equivalent to the will of the people.
History of Stare Decisis Through the Prism of Abortion Laws
In this section, we’ll take a look at some real-life examples of stare decisis and historical events that had a substantial impact on the US legal system, particularly in regard to abortion laws. Some of the cases we selected have set important precedents that help preserve the actual and perceived integrity of the judicial process.
The Introduction of the Equal Protection Clause
The 14th Amendment to the US Constitution was ratified in 1868, three years after the American Civil War. One of its key sections is the Equal Protection clause, which states that no state shall ”deny to any person within its jurisdiction the equal protection of the laws.”
This clause was introduced in response to the Black Codes that were passed by some Southern states after the war. These codes limited the civil rights and freedoms of African Americans, essentially making them second-class citizens. The Equal Protection Clause was meant to protect against such discrimination by ensuring that all people are treated equally under the law, regardless of race.
Since then, the Supreme Court has relied on the Equal Protection Clause to rule against other types of discrimination, too.
The Roe v. Wade Case
Roe v. Wade is a landmark 1973 Supreme Court case that recognized women’s constitutional right to abortion. The case was brought by Norma McCorvey, known pseudonymously as "Jane Roe," who challenged a Texas law that criminalized abortion in all cases except those where the mother's life was in danger.
In a 7 - 2 opinion, the Supreme Court ruled that the right to privacy and personal liberty, as guaranteed by the Due Process Clause of the Fourteenth Amendment, extended to a woman's decision to have an abortion. This ruling permitted abortion before fetal viability, i.e., up until about 24 to 28 weeks after conception.
The ruling sparked a decades-long legal and cultural battle over abortion, with both pro-choice and pro-life advocates claiming the mantle of the Constitution. While the Roe case remains controversial due to the very nature of the subject, it has had a profound impact on American society.
However, there was another far more recent case that sparked controversy and ended with a much different ruling.
The Planned Parenthood of Southeastern Pennsylvania v. Casey Case
Another example of stare decisis is the Planned Parenthood of Southeastern Pennsylvania v. Casey. The plaintiffs challenged the provisions of the Pennsylvania Abortion Control Act of 1982. These provisions ordered that the woman seeking abortion needed to:
- Provide consent before the procedure, specifying that she was given information about abortions at least 24 hours prior
- Provide a statement that she informed the husband, if she’s married
- Provide consent of at least one parent, if she’s a minor
In this case, the Supreme Court applied the doctrine of stare decisis by revisiting the Roe v. Wade case. The Court considered factors such as the workability of the Roe Supreme Court precedent, reliance on its continued application, personal autonomy and bodily integrity, and changes in maternal healthcare.
Governed by the “undue burden” principle, the Court decided that the rule requiring married women to inform their husbands about their decision to have an abortion was unconstitutional, as it restricted the individual’s right to decisional freedom. Thus, this provision was struck down, while the other two remained.
Dobbs v. Jackson Women’s Health Organization
Before we delve into the facts of the Dobbs v. Jackson Women’s Health Organization case, we should mention that, in 2018, the state of Mississippi passed the Gestational Age Act.
This act banned all abortions after 15 weeks of gestation, which is about two months earlier than what the Roe decision allowed. The only allowed exception was in the case the pregnancy posed a danger to the mother’s life.
In the Dobbs v. Jackson Women's Health Organization case, the Jackson Women's Health Organization - the only licensed abortion facility in Mississippi - filed a lawsuit in federal district court challenging the Gestational Age Act.
The US District Court for the Southern District of Mississippi and the US Court of Appeals for the Fifth Circuit concluded that this state law was unconstitutional based on the doctrine of precedents in the Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey cases.
However, the Supreme Court was then petitioned by Mississippi for a writ of certiorari, asking the Court to uphold its law. In May 2021, the Court came to an agreement with a 6 - 3 majority to hear the case.
Samuel Alito, an Associate Justice of the Supreme Court, wrote a majority opinion dismissing the argument that the Equal Protection Clause applies in this case. He stated that “procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our nation’s history.”
This argument is highly controversial because it maintains that, for a right to be considered “fundamental,” it must have explicit textual support in the Constitution. This view stands in contrast to the substantive due process approach, which says that certain unenumerated rights are fundamental because they’re “implicit in the concept of ordered liberty.”
In June 2022, the Supreme Court overturned Roe v. Wade, ruling that the Constitution doesn’t provide the right to abortion, a decision that has set off a wave of protests across the country. This case is an example of how the principle of stare decisis can be overturned.