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Stare Decisis and Nonjudicial Actors

27 Pages Posted: 12 Aug 2008  

Amy Coney Barrett

Notre Dame Law School

Date Written: August, 12 2008

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.

Suggested Citation

Barrett, Amy Coney, Stare Decisis and Nonjudicial Actors (August, 12 2008). Notre Dame Legal Studies Paper No. 08-27; Notre Dame Law Review, Vol. 83, No. 3, 2008. Available at SSRN: https://ssrn.com/abstract=1219801

Amy Coney Barrett (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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