Abstract
Stare decisis stands at a crossroads. The Supreme Court has recently overturned landmark precedents on abortion rights, affirmative action, and administrative deference, while signaling its willingness to reconsider other long-settled doctrines. Amid this tumult, one principle appears to command broad consensus: Stare decisis carries heightened force in statutory cases, where Congress can override the Court’s decisions through ordinary legislation, and less force in constitutional cases, where override can only be accomplished through the onerous Article V amendment process. Yet this doctrine of “relative stare decisis” rests on remarkably fragile foundations. The principal justifications offered by its adherents are underdeveloped or unpersuasive, and several compelling critiques have gone unanswered. Perhaps most troublingly, courts routinely and illogically invoke this broad generalization about two heterogeneous categories of decisions as a reason to follow precedent in particular cases. This Article reconstructs relative stare decisis from the ground up, developing two distinct justifications for treating statutory and constitutional precedents differently. The error-costs rationale provides a more rigorous foundation for familiar intuitions about the significance of legislative override. The epistemic rationale explains why statutory precedents that survive legislative override reflect greater accumulated wisdom than constitutional precedents. Because the strength of these justifications varies significantly within statutory and constitutional domains, as well as across the statutory-constitutional divide, it is necessary to calibrate the strength of stare decisis on a case-by-case basis. To that end, the Article develops a practical toolkit for balancing stability and reliance interests against error costs, while also accounting for the epistemic value of statutory precedents that have stood the test of time.
DOI
https://doi.org/10.63140/j_db3el-z6
Recommended Citation
Andrew Coan, Relative Stare Decisis 2025 ULR 1057 (2025).