Abstract
In light of the Rehnquist Court's misuse of stare decisis, and the Court's repeated admonitions that stare decisis is a doctrine of policy, not a command, this Article suggests the abrogation of stare decisis from the Supreme Court's analysis of constitutional issues. Policies are designed to foster beneficial outcomes. When stare decisis is viewed in the context of relevant case law, particularly Casey and Dickerson, it is apparent that this haphazard and consequentialist application of stare decisis is not a benefit, but a detriment. Although abandoning stare decisis has consequences, those consequences are administrative and have no impact on the Constitution. In the end, stare decisis is merely a tool used to reach a preordained outcome based on a blending of the merits of a case and public pressure. This pragmatic approach is illegitimate and an abdication of the Court's constitutional duty to say what the law is. The Court damages its reputation in an attempt to mask its primary responsibility. This policy should end. Pragmatism has no place in the Supreme Court and its application in the realm of stare decisis is unwarranted and unacceptable. In the end, it is pragmatism, not constitutional adjudication, that sacrifices the Court's legitimacy.
Recommended Citation
Consovoy, William S.
(2002)
"The Rehnquist Court and the End of Constitutional Stare Decisis: Casey, Dickerson and the Consequences of Pragmatic Adjudication,"
Utah Law Review: Vol. 2002:
No.
1, Article 2.
Available at:
https://dc.law.utah.edu/ulr/vol2002/iss1/2