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Wed Jul 4, 2018, 10:55 PM

Precedent and Jurisprudential Disagreement (stare decisis) by Amy Coney Barrett

Precedent and Jurisprudential Disagreement from the Texas Law Review, 2015.


III. Institutional Legitimacy and Reliance Interests

Because stare decisis is relatively weak in constitutional cases, the moderating function is the main contribution of the constraint against overruling in cases involving deep-seated jurisprudential disagreement. It forces the Court to proceed cautiously and thoughtfully before reversing course, but it does not force the Court to retain precedent. Yet while this may be consistent with the Court’s actual practice, it is contrary to the arguments of those who have argued in favor of a significantly stronger role
for stare decisis in constitutional cases.89

It also arguably gives short shrift to the risks associated with departures from precedent—in particular, preservation of the Court’s institutional legitimacy and the protection of reliance interests.90 This Part considers those concerns in turn and concludes
that even a weak system of constitutional stare decisis protects institutional legitimacy and reliance interests more than is commonly supposed.

A. Institutional Legitimacy

Leaving room for new majorities to overrule old ones allows changed membership to change what the Court says the Constitution means. One of the stated goals of stare decisis, including stare decisis in constitutional cases, is institutional legitimacy, both actual and apparent.91 If the Court’s opinions change with its membership, public confidence in the Court as an institution might decline.92 Its members might be seen as partisan rather than impartial93 and case law as fueled by power rather than reason.94 Others have challenged the view that protecting the Court’s reputation is a valid reason to retain precedent.95 Akhil Amar captures the criticism well:

“ It does not seem to me that when the Supreme Court has made a mistake, it ought to respond by not telling the citizenry because it fears that the American people cannot handle the news.”96


But even assuming that the Court should make decisions with an eye toward its reputation, there is little reason to think that reversals would do it great damage. Stare decisis is not a hard-and-fast rule in the Court’s constitutional cases, and the Court has not
been afraid to exercise its prerogative to overrule precedent.97 Still, public confidence in the Court remains generally high.98 Moreover, members of the public (and particularly elites) regularly argue that the Court should overrule certain of its cases.99

If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging.


Court watchers embrace the possibility of overruling, even if they may want it to be the exception rather than the rule. The “protecting public confidence” argument seems to assume that the public would be shaken to learn that a justice’s judicial philosophy can affect the way she decides a case and that justices do not all share the same judicial philosophy.1

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Arrow 14 replies Author Time Post
Reply Precedent and Jurisprudential Disagreement (stare decisis) by Amy Coney Barrett (Original post)
Solly Mack Jul 2018 OP
elleng Jul 2018 #1
Solly Mack Jul 2018 #2
Solly Mack Jul 2018 #3
Sophia4 Jul 2018 #7
Solly Mack Jul 2018 #8
spanone Jul 2018 #4
Solly Mack Jul 2018 #5
spanone Jul 2018 #6
brer cat Jul 2018 #9
Solly Mack Jul 2018 #10
Solly Mack Jul 2018 #11
Solly Mack Jul 2018 #12
Solly Mack Jul 2018 #13
Solly Mack Jul 2018 #14

Response to Solly Mack (Original post)

Wed Jul 4, 2018, 11:11 PM

1. a revolutionary, sub rosa.

Of course, trump will never recognize it.

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Response to elleng (Reply #1)

Wed Jul 4, 2018, 11:13 PM

2. I've been digging about the net for her academic works.

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Response to Solly Mack (Original post)

Wed Jul 4, 2018, 11:28 PM

3. This is important.

She would vote to overturn Roe v Wade.

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Response to Solly Mack (Reply #3)

Thu Jul 5, 2018, 03:18 AM

7. I also think she would. It's important that DUers read this so I recommended it.

 

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Response to Sophia4 (Reply #7)

Thu Jul 5, 2018, 03:24 AM

8. She's actually spelling out why she would in the paper.

Her word choices and the framing of her argument about stare decisis and its relationship to Roe, as one of her examples - she mentions Roe 9 different times as an example throughout the paper as a ruling that couldn't be considered written in stone (established precedent) since it was controversial to some people...so it could be changed/overturned.

That she would even take the opinion that it could be overturned as not being a solid precedent tells us all we need to know about her.

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Response to Solly Mack (Original post)

Wed Jul 4, 2018, 11:30 PM

4. K&R...

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Response to spanone (Reply #4)

Wed Jul 4, 2018, 11:35 PM

5. Thank you

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Response to Solly Mack (Reply #5)

Wed Jul 4, 2018, 11:47 PM

6. 👍🏼

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Response to Solly Mack (Original post)

Thu Jul 5, 2018, 06:31 AM

9. Thanks for posting this, Solly.

I guess it would be naïve to assume this is enough evidence for Murkowski and Collins.

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Response to brer cat (Reply #9)

Thu Jul 5, 2018, 12:38 PM

10. Collins could claim that isn't a hostile demonstration.

I believe that's the words she used. Though any opinion saying Roe isn't a "superprecedent" (to borrow a phrase) is a hostile opinion to my thinking.

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Response to Solly Mack (Original post)

Thu Jul 5, 2018, 03:10 PM

11. "The Constitution does not expressly protect a right to privacy," Amy C Barrett

ACB

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Response to Solly Mack (Original post)

Sat Jul 7, 2018, 12:28 PM

14. ...

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