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J. Bradley Klepper
Attorney at Law

I always work under the assumption that I and perhaps a handful of others are really the only people who care about stare decisis and how it impacts our legal system. The reason I am so confident in this is that I believe most folks have no idea what the doctrine of “stare decisis” means.
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Well congratulations, today we are going to address this issue.

First, state decisis, is just a fancy Latin term they teach you in law school so you can justify an increase in your hourly rate. But seriously, in short the term means “to stand by things decided.” This is also known as precedent.

Now you may wonder why I have chosen to write about this doctrine at this time.

The answer is that the doctrine of stare decisis was an issue in the Supreme Court’s recent decision to overturn Roe v. Wade (1973) and Planned Parenthood v. Casey (nearly two decades later).

To be up-front, I am not going to discuss the pros and cons of Dobbs v. Jackson Women’s Health Organization. I am not sure there is a more divisive legal issue in the country today, and I have no intention of wading into that debate. Few people like lawyers to start with, and I don’t want to reduce that number in half by expressing an opinion that would alienate two of the four folks who like lawyers.

Instead, I am going to discuss the legal doctrine of stare decisis and how it comes into play in Supreme Court decisions.

As background, the concept of stare decisis is not found in the Constitution or in any state or federal law. It is based on English common law and Alexander Hamilton’s comments in the Federalist Paper 78 in which he said, “to avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents … (and) the records of those precedents must unavoidably swell to a very considerable bulk.”

In other words, courts should be bound by their prior decisions. This provides stability and uniformity in the interpretation and application of law to cases, thereby allowing society to rely on settled law. As Justice Lewis Franklin Powell Jr. once remarked, “The elimination of constitutional stare decisis would represent an explicit endorsement of the idea that the Constitution is nothing more than what five justices say it is.”

In the real world, the doctrine of stare decisis applies both horizontally and vertically. Meaning that lower courts are compelled to follow the decision of higher courts (vertically). To a lower court judge, decisions by the Supreme Court are law and must be followed. Also, horizontal precedent refers to the Supreme Court following its prior decisions.

Of course, the courts have adhered to the concept with varying degrees of loyalty. In fact, former Chief Justice William Hubbs Rehnquist said that “precedent is a principle of policy and not a mechanical formula of adherence to the latest decision.”

In contrast, in a 2019 decision, Justice Elena Kagan said in a dissent that “judges do not get to reverse a decision just because they never liked it in the first instance.” She also said “it is hard to overstate the value, in a country like ours, of stability in law.”

With that said, the Supreme Court has overruled its prior decision 141 times since 1851. This is less than once a year. Of course, precedent helps make sense out the conflict between the wisdom of past decisions and the rationality of the present.

An example of where the courts ignored stare decisis can be found in Brown v. Board of Education, a unanimous decision that struck down the 1896 decision in Plessy v. Ferguson, which allowed “separate but equal” treatment of the races. This decision really started a revolution in civil rights law.

Another example is Texas v. Lawrence in 2003, which overturned Bowers v. Hardwick, a decision that allowed states to criminalize sodomy. In that decision, the court said the earlier case “was not correct when it was decided, is not correct today and is hereby overruled.”

In Dobbs v. Jackson Women’s Health Organization, the court noted that stare decisis “is at its weakest when we interpret the Constitution.” The court also found the quality of Roe’s reasoning, relying on a constitutional right of privacy arising from the First, Fourth, Fifth, Ninth, and 14th Amendments, was incorrect and that no such right is conferred by the Constitution. From there, the court found the decision in Roe v. Wade was damaging and usurped the power to address a question of profound moral and social importance and that the Constitution unequivocally leaves for people.

In other words, the court held that the Constitution does not create a constitutional right to an abortion, and the doctrine of stare decisis does not upholding Roe v. Wade. Whether or not you agree with this reasoning, it is important to note how the doctrine of stare decisis is addressed by and influences the court’s decisions.

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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Stare Decisis , Supreme Court


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