What is Stare Decisis?

Stare decisis is kind of like momentum . . .

Once you’re moving in one direction, you’ll keep going that way until something stops you. Similarly, stare decisis is the principle that keeps the legal system moving in the same direction. It’s always possible that a precedent may be overturned, but it can take a lot of effort, like stopping a car that’s moving at 60 miles per hour.

Stare decisis is a legal doctrine that, in theory, keeps consistency between court decisions on similar cases. The idea is to streamline the legal system so that courts don’t waste time and resources trying to relitigate the same type of case from scratch each time. Think of stare decisis as the principle of legal precedent — Current and future legal decisions should conform to the examples set by prior ones.

Stare decisis can work both horizontally and vertically, meaning courts make decisions that are either consistent with their own precedents (horizontal), or those set by higher courts like the U.S. Supreme Court (vertical). As the highest court in the country, the U.S. Supreme Court makes decisions that may have far-reaching ramifications. The Supreme Court’s rulings can influence the interpretation and execution of American law for years to come. Supreme Court decisions are considered binding precedents — In other words, they must be adhered to by all lower courts (like local trial courts, appellate courts (court of appeals), district courts, state courts, etc.) — but can be overturned by the Supreme Court.

For example, in the landmark case Brown v. Board of Education, the Supreme Court ruled that segregation in schools is unconstitutional. This set a legal precedent that made all school segregation in the country illegal, despite state laws mandating segregation in schools. In this way, the principle of stare decisis can be just as powerful, if not more so, than passing laws.

That said, stare decisis is not a hard and fast rule. Although it’s generally followed in the United States, courts can also overturn prior decisions and establish new legal precedents. For example, prior to Brown v. Board of Education, the decision in Plessy v. Ferguson held that the idea of “separate but equal” was not unconstitutional. While the Brown v. Board of Education ruling ended this precedent, it only did so partially, because it stated that segregation was only unconstitutional in schools.

A precedent is a prevailing legal interpretation based on previous court decisions. Imagine a hypothetical law that says biking on the sidewalk is illegal, but doesn’t clearly define what constitutes a sidewalk. Now, imagine there is a dirt path on the side of the road, and someone is fined for riding their bike on it. Does that dirt path count as a sidewalk according to the law? The answer is unclear; the case would need to play out in front of a court, and the court’s decision would then inform future cases.

If the biker is found guilty of riding on a sidewalk, that would create a legal precedent that says dirt paths count as sidewalks. If the biker is found not guilty, then it would create a legal precedent that a dirt path doesn't count as a sidewalk. In a stare decisis system, future cases that tackle the same question would follow the prior ruling, until it’s overturned.

Stare decisis is important because it shapes how the courts interpret and execute the law. Ideally, lawmakers make laws as clear cut as they can, but in reality, it’s difficult to account for all possible scenarios in which a law can be applied. Some laws may contradict others laws, or even be unconstitutional (as in, contradict the US constitution).

When applied on a larger scale, stare decisis can have implications powerful enough to change the course of history — For better or worse. In the United States, historic precedents have outlawed segregation (like it did in Brown v. Board of Education) and legalized same-sex marriage (in Obergefell v. Hodges). But major decisions have also contributed to dark periods in the country’s history — Courts have upheld racial segregation (Plessy v. Ferguson), Japanese internment during World War II (Korematsu v. United States), and denied citizenship to African American enslaved people (Dred Scott v. Sandford).

Stare decisis has origins in ancient Greece, Rome, and Egypt, where judges looked to earlier decisions for guidance on how to interpret new cases that they faced. At the time, however, consulting past cases was not an obligation.

Medieval English common law may be the first time a concept like stare decisis was written down. Around the year 1256, an English judge named Henry de Bracton wrote a treatise that supported the idea of legal precedent. Although de Bracton didn’t believe in an obligation to uphold precedents, his treatise introduced many legal professionals to its importance. De Bracton’s treatise may have contributed to the development of the Year of Books, a compilation of legal cases that further popularized the idea of precedents (though still not by obligation).

It wasn’t until the 1500s that following precedents started to become viewed as obligatory. In the English case Virley v. Gunstone, for example, an appellate court (a court that handles appeals) decided not to overturn a decision based on the idea that it should conform to past decisions. A prominent English judge, Sir Edward Coke, later furthered the idea of legal precedent, saying, “Our book cases are the best proof [of] what the law is,” referring to past decisions. He attempted to further popularize his legal philosophy by writing a thirteen-volume treatise called The Reports.

Coke’s ideas about the importance of legal precedent continued to influence the development of case law (past legal decisions that are used as precedents) over the next few centuries. A growing number of lawyers began to adopt his legal philosophy. However, there were still years where precedents were strongly upheld, and others when they were viewed more liberally.

Stare decisis has a long history in the United States. The Framers of the Constitution believed in the importance of the doctrine, and Alexander Hamilton believed that it should be obligatory. James Madison, however, disagreed that following legal precedent should be compulsory. During Chief Justice John Marshall’s tenure, the Supreme Court adhered to a strong preference for adherence to precedent, while still allowing some room to overturn cases.

Stare decisis became less strict by 1938, when a longstanding precedent set by Swift v. Tyson was overruled in Erie Railroad Company v. Tompkins. U.S. courts have continued to uphold precedents for the most part, but courts are not bound to them (unless the precedents come from higher courts) — Courts still have the ability to overturn prior decisions made at the same court level.

Some of the advantages of stare decisis include:

• Consistency and fairness: Stare decisis is meant to ensure that similar legal cases will reach decisions that are consistent with one another. The idea is to help the courts better implement laws, for citizens to better understand them, and to instill a sense that the legal system treats citizens fairly — In other words, all cases are treated the same.
• Flexibility: Although stare decisis assumes that courts will generally follow precedents, the principle allows room to overturn prior decisions and make new precedents. This allows the law to evolve over time.
• Saves time and resources: Stare decisis encourages judges to consult past decisions for reference instead of making their decisions in a vacuum. This may help courts decide difficult cases more efficiently.

Some of the disadvantages of stare decisis include:

• Rigidity: Sometimes, stare decisis brings flexibility to the table. But other times, it just makes it harder to overrule a bad decision. While there is often no obligation to follow precedent, the doctrine is fairly ingrained into the legal system, so judges will usually need a very good reason to overrule a decision.
• Undemocratic decision-making: Unlike laws passed by governments, high-court decisions are often made by judges who are appointed (rather than elected). This may make their decisions less accountable to the general public.
• Emphasis on the past: Following precedents that are decades or even centuries old can sometimes lose sight of how the world has changed since those precedents were first set.

Several countries use stare decisis but to varying degrees. Here are a few examples:

• Austria encourages judges to look to previous decisions but does not mandate strict adherence to the doctrine of stare decisis.
• England used to mandate strict stare decisis but eased the practice in 1966. More recently, precedents are generally upheld but can be overturned.
• Germany mandates a strict stare decisis for all cases decided by the German Federal Constitutional Court.
• The United States generally upholds precedents but does not mandate strict stare decisis.