This essay is part of a series of advice for Judge Gorsuch. See related articles here

Halley’s Comet famously makes its pass by the earth roughly once every seventy-five years. By comparison, the average revolution of the legal principle of stare decisis is much shorter—it crops up in the news whenever it is time for a Republican president to fill a vacancy on the United States Supreme Court.

The last sighting was in 2005. President Bush had just nominated John Roberts to the Court. National Public Radio aired a report on stare decisis, which was expected to be an important litmus test for Roberts’s confirmation. While being interviewed, NPR’s legal astronomer mused that the looming confirmation hearings would “hinge on a Latin term known to make first-year law students shudder in their shoes: ‘stare decisis,’ or ‘standing by that which is decided.’” Stare decisis—a brooding omnipresence in the sky.

After that, stare decisis faded from public view. “Standing by that which is decided,” stare decisis, went unmentioned by Justice Kennedy in his groundbreaking Obergefell opinion, relevant though it would have been to any decision throwing aside a millennia-old definition of marriage which had—to quote Chief Justice Roberts’s dissent—“persisted in every culture throughout human history.” For the majority, prior precedent could give way to evolving standards of decency: “The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled.” Where did stare decisis go?

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Not to worry. President Trump’s recent nomination of Judge Neil Gorsuch heralds urgent discussion of the importance of stare decisis. Just two days after the announcement, NPR again drew attention to stare decisis in a lengthy interview with Senator Richard Blumenthal, a member of the Senate Judiciary Committee. Senator Blumenthal defined a “mainstream” (confirmable) jurist as follows:

It really goes to the root of a judge’s philosophy—sitting on a bench, deciding cases whether he or she respects well-established precedent. There’s a doctrine called stare decisis. Without going into all the legal gobbledygook, what it means essentially is that judges respect past opinions and rulings that established settled law.

Other Democratic senators share this concern for strict adherence to stare decicis. For example, Senator Ron Wyden, with Trumpian fervor, recently tweeted that Judge Gorsuch’s nomination constitutes “a breathtaking retreat from the notion that Americans have fundamental Constitutional rights.” What could possibly lead to such a sweeping accusation? According to one observer, Senator Wyden’s concerns hinge on speculation regarding Judge Gorsuch’s understanding of stare decisis. But he, and others like him, aren’t worried about the doctrine per se. They are worried about one precedent in particular: Roe v. Wade. Senator Blumenthal makes this plain: “I want to know whether Judge Gorsuch respects the settled law that is Roe v. Wade and the cases that have followed it,” he told NPR.

What Made Stare Decisis Great Again?

Those making the loudest demands for stare decisis happen also to be those committed to reading the Constitution of the United States as a “living constitution.” Isn’t it odd for progressives, who think the meaning of the Constitution shifts with Americans’ “evolving standards of decency,” to demand unwavering adherence to an ancient common law doctrine requiring judicial restraint?

Stare decisis does not appear in the Constitution. It is not found in the Bill of Rights. As a doctrine, stare decisis rose to prominence after the Supreme Court declared its supremacy in Cooper v. Aaron. The idea that the Supreme Court, and only the Supreme Court, has the power to define (and redefine) the meaning of the Constitution and laws of the United States altered the importance of stare decisis. Judicial supremacy allows the Court to assume the awesome power of declaring the existence of new rights (e.g., Roe v. Wade) and striking down old laws (e.g., Obergefell v. Hodges).

There is a problem, however, for judicial supremacists (especially those who construct new rights or strike down old laws on the basis of five to four majorities). What happens when the composition of the Supreme Court changes? What if a new majority no longer shares the policy commitments of prior Courts? This is where the modern view of stare decisis fits. Demanding that the Rehnquist or Roberts Court is “bound” by the decisions of the Warren Court, judicial supremacists seek to protect rights created by judicial fiat. But this asks too much (and demands too little) of the ancient common law doctrine of stare decisis.

We will be hearing much more about stare decisis over the coming weeks. Thus, it is worth “getting into the legal gobbledygook,” as Senate Judiciary Committee members might say, to understand what stare decisis is and what it is not. Doing so might help alleviate unfounded concerns regarding Judge Gorsuch’s judicial qualifications and temperament.

What is Stare Decisis?

Stare decisis abbreviates the ancient maxim “stare decisis et non quieta movere” (“to stand by decisions and not to disturb settled matters”). Lawyers understand stare decisis as the foundation for the law of precedents. Lower courts must accept and apply rulings of higher courts, and higher courts are required to treat like cases alike (even where later courts might disagree with the holdings of prior cases). Courts have identified many reasons for this maxim of deference to prior decisions (reasons of fairness, economy, efficiency, stability, and the like).

But stare decisis has never been understood to be an unbending rule. Those who argue that stare decisis compels blind adherence to all prior precedents distort the doctrine. To understand this distortion, we must consider its origins and development. Older opinions of the Supreme Court acknowledge that stare decisis is a doctrine rooted in English common law. Thus, the doctrine is best understood by examining its common-law foundations.

The Common-Law Foundations of Stare Decisis

At common law, stare decisis requires judges to respect decisions of the past. It is not a bright-line mandate requiring adherence to judge-made law. Even when applicable it is not a conclusive reason for judicial action. Instead, stare decisis creates a rebuttable presumption in favor of adhering to prior judicial decisions. The presumption of deference to precedent is rebuttable in several ways, and in some circumstances the common law requires judges to overrule or abrogate prior precedents.

William Blackstone, the great historian of the common law, described stare decisis in his Commentaries as follows: “Precedents and rules must be followed unless flatly absurd or unjust; for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose that they acted wholly without consideration.” This description reflects the common law’s deference to history, tradition, and custom. Because the common law develops gradually on the basis of customary law, judges ought to apply older rules even when they do not fully agree with them.

Many are tempted to read Blackstone as also supporting the modern view of stare decisis. “Precedents must be followed,” is the modern “mainstream” mantra. This view thereby insulates cases like Roe v. Wade from scrutiny. Yet this view of stare decisis ignores Blackstone’s explanation of the limits of the doctrine. As stated above, cases like Roe deserve no deference if “flatly absurd or unjust.” Elsewhere Blackstone explains that precedents “contrary to reason” require later judges to overrule (or refuse to apply) them. Blackstone further explains that stare decisis “admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law.” If “manifestly absurd or unjust,” then according to Blackstone’s view of stare decisis, the “subsequent judges” must reject the prior precedent.

Chancellor Kent provides a similar description of stare decisis in his Commentaries on American Law. “A solemn decision upon a point of law, arising in any given case,” Kent explains, “becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject.” What does Kent mean by the phrase “highest evidence” of the law? Why not just say the precedents are themselves law?

Neither Kent nor Blackstone nor any other lawyer in the common law tradition understands judicial precedents to be “the law.” Judicial opinions are “evidence” of what the law is. These prior opinions are, as Blackstone explained, entitled to deference (respect given to previous courts who attempted to discern what the law is). But unlike the modern view of the judicial supremacist (who assumes the law to be made by judges), Blackstone, Kent, and other common lawyers understand that stare decisis does not relieve judges of the duty to accurately determine what the law is (what accords with reason) in new cases.

Blackstone thought that the common law requires judges to endeavor to correctly identify and apply law in every case. Judicial precedents are strong evidence of what the law is (in similar cases). But if one of the advocates can establish that a precedent was “contrary to reason,” “manifestly absurd,” or “unjust,” then judges must not apply it. Such bad precedents are not merely bad law; they never were law. In Blackstone’s words, a judge rejecting prior precedent does not determine that the prior opinion “was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined.”

Stare decisis has never dictated blind adherence to manifest error. At the same time, prior precedents ought to be given due deference and respect. Kent explained this balance: “If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. If, however, any solemnly adjudged case can be shown to be founded in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error.”

Departing from Common-Law Foundations of Stare Decisis

Over the past century, the common law has been greatly obscured and stare decisis has been thrown out of balance. The confusion began with Justice Oliver Wendell Holmes, Jr., who rejected the very existence of the common law. He famously declared that “the common law is not a brooding omnipresence in the sky.” For Holmes (and many others after him), law was reduced to the commands of sovereign power. Opinions of judges were transformed. No longer were these precedents “evidence” of what the law is in a particular case. Judicial opinion became the law.

Progressives favoring a “living constitution” and “evolving standards of decency” now lay claim to stare decisis as an instrument of their sovereign power. In such hands, stare decisis does not defer to history, tradition, nor custom. (It was ignored in Obergefell.) Stare decisis is rather intended to insulate poorly reasoned judicial pronouncements from the scrutiny of later jurists.

Unlike Blackstone’s understanding, the version of stare decisis described by Senator Blumenthal as “mainstream” would compel members of the highest court to adhere to “manifestly absurd” or “unjust” precedents. Such a view strips stare decisis away from its common-law foundations, alters its meaning, and makes it a dangerous instrument of sovereign power.

Stare decisis does not demand unyielding adherence to prior opinions because sometimes judges (even justices on the Supreme Court) make mistakes. Chancellor Kent put it this way:

But I wish not to be understood to press too strongly the doctrine of stare decisis, when I recollect that there are one thousand cases to be pointed out in the English and American books of reports, which have been overruled, doubted or limited in their application. It is probable that the records of many of the courts in this country are replete with hasty and crude decisions; and such cases ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.

More recently, Justice Kennedy, on behalf of the majority in Lawrence v. Texas, explained that “the doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command.” This statement reflects the ancient understanding of stare decisis. Applying it, the majority in Lawrence expressly overruled Bowers v. Hardwick. And the Supreme Court has overruled a great many of its other precedents.

Judge Gorsuch need not affirm blind adherence to prior cases in order to affirm the vitality of stare decisis. And he ought not be expected to comply with demands that stare decisis be applied in an uneven manner. If the Court has the power to overrule Bowers and Baker, then it probably has the power to overturn Roe too—unless it is now “mainstream” to allow stare decisis for me, but not for thee.