Frederick Schauer

Stare Decisis—Rhetoric and Reality in the Supreme Court

PUBLISHER
Supreme Court Review
DATE
2018
 

Abstract

To an increasing degree, Supreme Court justices have been explicitly invoking the alleged constraints of stare decisis, especially by way of criticizing justices thought to be ignoring those constraints. But this accelerating use of stare decisis as a rhetorical weapon is at odds with what the data show about the frequency with which stare decisis actually operates as a genuine constraint on Supreme Court decision-making. It is thus not surprising that justices who criticize other justices for ignoring stare decisis are justices who themselves rarely if ever subject their own first-order outcome preferences to the demands of stare decisis. In the final analysis, stare decisis, perhaps unfortunately, serves far more of a rhetorical function than a decision-guiding or decision-constraining one, at least recently, and at least in the Supreme Court.

Citation

Frederick Schauer, Stare Decisis—Rhetoric and Reality in the Supreme Court, 2018 Supreme Court Review 121-143 (2018).
 

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