Stare Decisis and the Supreme Court(s): What States Can Learn from Gamble

34 Pages Posted: 27 Feb 2020

Date Written: January 24, 2020


The Supreme Court has recently begun to explore the theoretical underpinnings to its long-adhered to stare decisis doctrine. In 2019, Justice Thomas explained his views in his concurrence in Gamble v. United States, offering both a scathing critique of the Court’s current application of stare decisis and a detailed account of his own textually grounded approach to precedent.

While Justice Thomas’s concurrence is understandably aimed at the Supreme Court, the current literature on stare decisis is likewise focused on federal law. Given their comparative caseloads—the Supreme Court hears roughly eighty cases per year, while 75,586 cases were filed with state supreme courts in 2016 alone—treatment of precedent at the state level deserves greater doctrinal development. This Note attempts to advance that discussion by proposing new stare decisis considerations for state courts of last resort.

While almost all questions before the Supreme Court require statutory or constitutional interpretation, state courts of last resort occupy a unique place in the American judicial landscape. As common-law courts, state supreme courts are empowered to develop common-law doctrines in addition to interpreting democratically enacted texts. This Note argues that these two distinct state court functions—interpretation of statutes and constitutions and common-law judging—call for two distinct approaches to stare decisis, a distinction that is often muddied in practice. Justice Thomas’s concurrence in Gamble provides the framework for each approach, a framework based on the genesis and development of stare decisis from its English common-law roots.

Specifically, this Note argues that even if the Supreme Court does not accept Justice Thomas’s approach, state supreme courts should when deciding state statutory and constitutional questions. The distinct nature of state constitutions, the state legislative process, and state legislative power in general call for a textually grounded approach to stare decisis of the kind Justice Thomas proposed in his Gamble concurrence. Conversely, this Note argues that state supreme courts should adhere to traditional stare decisis formulations when resolving common-law disputes because the doctrine of stare decisis itself developed at common law and has greater legal and practical significance in the common-law context.

Drawing upon Justice Thomas's Gamble concurrence and recent stare decisis literature, this Note takes the current discussions of stare decisis that are occurring at the federal level and distills from them a principled approach to precedent for state courts of last resort.

Keywords: Stare decisis, originalism, federalism, statutory interpretation

Suggested Citation

Pohlman, Zachary B., Stare Decisis and the Supreme Court(s): What States Can Learn from Gamble (January 24, 2020). 95 Notre Dame Law Review (2020), Forthcoming. Available at SSRN:

Zachary B. Pohlman (Contact Author)

Notre Dame Law School ( email )

Notre Dame, IN 46556
United States

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