Transtemporal Separation of Powers in the Law of Precedent
University of Georgia Law School
February 21, 2011
Notre Dame Law Review, Forthcoming
UGA Legal Studies Research Paper No. 11-05
The rule of stare decisis creates a presumption that a court’s ruling on a legal question remains binding in later decisions by the same court or hierarchically inferior courts. This presumption promotes stability in the law and protects reliance interests. Decisions that narrowly construe or overrule prior opinions can therefore seem like unprincipled threats to the rule of law.
This article seeks to highlight some countervailing themes in the case law, showing that stability and the protection of reliance interests are not the exclusive concerns underlying the law of precedent. The relevant doctrine attempts to balance these objectives with competing goals, such as restraining judicial overreaching and ensuring that precedent-setting courts observe time-honored decision making practices. As developed by the Supreme Court, the law of precedent allows later judges to narrowly construe or accord diminished weight to a prior opinion if it resolves issues not before the precedent-setting court, addresses legal questions without adequate briefing or argument, or fails to justify the court’s legal conclusions.
Since judicial authority consists of the power to "say what the law is" (Marbury v. Madison), these cross-currents in the law of precedent serve separation of powers functions. The ability of a court to establish precedent acts as a check on the power of judges who come later in time. On the other hand, the ability of later judges to ignore dicta and to limit the precedential effect of opinions decided without adequate care provides a counterbalancing check on the power of the earlier court. The law of precedent thus distributes the law speaking power over time, reserving the greatest precedential impact for opinions that address only the issues before the court, based on plenary briefing and argument, and with adequate explanation of the rationale.
After tracing these themes in the law of precedent, the article considers their application to three issues likely to come before the Supreme Court in future cases. Specifically, the analysis addresses how these limitations on the rule of stare decisis might affect the precedential value of Baker v. Nelson, dealing with the constitutional status of same-sex marriage; Iqbal v. Ashcroft, discussing the liability of supervisory personnel based on constitutional violations committed by their subordinates; and the viability rule of Roe v. Wade and Planned Parenthood v. Casey, forbidding state regulation of abortion prior to fetal viability.
Number of Pages in PDF File: 57
Keywords: Constitutional law, precedent, stare decisis, judicial authority, separation of power
JEL Classification: K10
Date posted: February 21, 2011 ; Last revised: January 16, 2012
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