How Often Do Courts Disregard Stare Decisis?
Some academics believe that judges — at least judges on our nation’s highest court — never follow the rule of stare decisis. The scholars speculate that judges decide cases according to their own sense of justice, invoking precedent when it is helpful and distinguishing or overruling precedent when it is not. According to these scholars, stare decisis plays no independent role in judicial decisionmaking. Instead, the doctrine is simply rhetoric. This charge certainly goes too far. There are entire domains of law controlled by precedent that the courts would not dream of disturbing. The very security of the precedent makes these rules almost invisible. Settled interpretations mark the outer bounds of most statutes. Even in constitutional law, more things are settled than open. No one in the United States seriously doubts that our national administrative agencies are constitutional, while a national church would be unconstitutional. Some things are so clear, that no one questions them
