One of the first terms any western law student becomes familiar with is the notion of stare decisis, latin for “to stand by things decided.” Stare decisis is the encapsulation of the Common Law system, which gains much of its stability from precedent, or the notion that courts generally follow previous rulings. It allows for both the accumulation of wisdom and knowledge on many topics of the law, but also makes judging infinitely more efficient.

Whenever any person is nominated to the Supreme Court, you can almost guarantee that they will mention their reverence to stare decisis. Chief Justice John Roberts talked a great deal during his confirmation about stare decisis, and compared judges to umpires. “Umpires don’t make the rules; they apply them.”

That said, precedent is not an “inexorable command,” as the late Chief Justice William Rehnquist said. Stare decisis for lower courts is binding, and judges are usually required to follow it. (There is wiggle room here, as a judge could say that current facts are significantly different enough from those of previous cases to warrant departure from precedent.)  The Supreme Court, however, plays with a different handbook, to continue the baseball analogy. Northeastern Law School Professor Dan Urman said the only thing preventing the Court from overturning its precedent is “norms” and “shame.”  And he’s right. The Court has, in recent years, turned over numerous precedents.

Overturning precedent can happen when a previous decision is seen as totally unjust and unworkable, and when social conditions change so significantly to warrant it. And the latter is responsible for some of the most famous cases in history. Brown v. Board of Education overturned Plessy v. Ferguson and made segregation unconstitutional. Lawrence v. Texas overturned Bowers v. Hardwick, which ruled that sodomy laws were constitutional. Lastly, Obergefell v. Hodges legalized same-sex marriage and overruled Baker v. Nelson, in which the Court of 1972 dismissed a case about same-sex marriage “for want of a substantial federal question.”

Although precedent leads to a great amount of stability in our legal system, it’s obvious that, at times, it must be set aside for the cause of justice.


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