Stare Decisis after Citizens United: When Should Courts Overturn Precedent

Nexus Journal of Law & Public Policy, Vol. 16, 2011

16 Pages Posted: 13 Feb 2011 Last revised: 8 Aug 2011

See all articles by Ilya Shapiro

Ilya Shapiro

Cato Institute

Nicholas M. Mosvick

University of Mississippi, School of Law

Date Written: May 11, 2011


Stare decisis is an important doctrine with deep roots in the common law. It "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U.S. 808, 827 (1991). Indeed, our interest in the law’s stability and predictability, and the reliance interests produced by judicial decisions, sometimes dictate that incorrect legal rulings be maintained - because the social disruptions from correction outweigh the benefits of reaching better decisions. Still, stare decisis is neither an "inexorable command," Lawrence v. Texas, 539 U.S. 558, 577 (2003), nor a "mechanical formula of adherence to the latest decision," Helvering v. Hallock, 309 U.S. 106, 119 (1940). Instead it is a prudential policy, one in which courts have to decide, based on factors such as the correctness, antiquity, and workability of the legal regime a precedent created, whether to overturn their earlier rulings. As Chief Justice Roberts put it in his Citizens United concurrence, "abrogating the errant precedent, rather than reaffirming or extending it, might better preserve the law’s coherence and curtail the precedent’s disruptive effects." 130 S. Ct. 876, 921 (2010) (Roberts, C.J., concurring). And so the Court in Citizens United found that both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. FEC, 540 U.S. 93 (2003), that relied on it were not worthy of preservation. They created an arbitrary and increasingly irrational campaign finance system that was an aberration of restrictions in a sea of protections for political speech. Moreover, then-Solicitor General Elena Kagan abandoned Austin’s speech-equality rationale during oral argument, undercutting any possible reliance interests. Only by overturning precedent could the Court contribute to the stable and orderly development of the law. This article will explain the role stare decisis played in Citizens United and build on the Chief Justice’s concurrence to describe the current state of the doctrine.

Keywords: stare decisis, Citizens United, Austin, McConnell, Lawrence, prudential, Payne, Chief Justice Roberts, John Roberts

Suggested Citation

Shapiro, Ilya and Mosvick, Nicholas M., Stare Decisis after Citizens United: When Should Courts Overturn Precedent (May 11, 2011). Nexus Journal of Law & Public Policy, Vol. 16, 2011. Available at SSRN:

Ilya Shapiro (Contact Author)

Cato Institute ( email )

1000 Massachusetts Avenue, N.W.
Washington, DC 20001-5403
United States
202-218-4600 (Phone)
202-842-3490 (Fax)


Nicholas M. Mosvick

University of Mississippi, School of Law ( email )

MS 38677
United States

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