Stare Decisis and Nonjudicial Actors

Abstract:     
This essay is as an introduction to a symposium on stare decisis and nonjudicial actors. It frames the questions explored in the symposium by pausing to reflect upon the variety of ways in which nonjudicial actors have, over time, registered their disagreement with decisions of the United States Supreme Court. Both public officials and private citizens have battled the Court on any number of occasions since its inception, and historically, they have employed a diverse range of tactics in doing so. They have resisted Supreme Court judgments. They have denied the binding effect of Supreme Court opinions. They have sought to overrule the Court by statute or constitutional amendment. They have sought overruling in the Court itself. They have tried to discipline the Court through jurisdictional limitations or onerous procedural regulation. And they have pressured the Court by appealing to public opinion. Some of these means, like constitutional override of a disfavored opinion, are generally consistent with notion that Supreme Court precedent is the law of the land. Others, like interfering with the enforcement of a Supreme Court judgment, represent a head-on challenge to the Court's authority. This essay describes some notable examples of each of these kinds of protest, noting, along the way, the problems posed by each.

Accepted Paper Series