Scare(y) Decisis: Reversing Rights and Wrongs

By: Benjamin G. Shatz
– Daily Journal

In his latest column for Daily Journal, Manatt Appellate Partner Benjamin Shatz explored the current state of stare decisis, its vertical and horizontal “flavors,” and the principle’s role in how and when courts decide to overrule precedent. 

Shatz explained that the policy of stare decisis does not have explicit grounding in the Constitution, but is rather “implicitly baked into the structure of court systems, intended to promote values such as stability, fairness, efficiency, and predictability.” Because of this, horizontal stare decisis—concerning the precedential effect of a court's own decisions—creates complications when attempting to overrule precedent, especially within the Supreme Court.  

Shatz discussed some of the key considerations when overruling precedent, and described how they inevitably change depending on whether the decision is based in constitutional analysis, statutory analysis, or case law analysis. “If stare decisis is too readily discarded, then the Constitution becomes ‘nothing more than what five Justices say it is’ at any point in time,” Shatz noted. “But if stare decisis is adhered to too slavishly, then the Constitution is nothing more than what five justices once said it was at one point (perhaps in the distant past).” 

Daily Journal subscribers can read the complete article here.

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