Publication Date
6-2025
Document Type
Article
First Page
655
Abstract
Most procedural doctrines are applied before the Court hears the merits of the case. What is unique to stare decisis is that the Court makes the determination after deciding the merits—what this Article calls a “post-merits” determination. This means the Court normally upholds an erroneous decision not because of its merits but because of the resulting policy benefits of keeping the law the same (e.g., reliance, judicial efficiency). If the policy benefits are not present, however, this Article argues that stare decisis would be of little value, because the Court would advance an argument which is both erroneous and has no policy justification. Simple though it sounds, the Court can get this wrong, and the result can be worse than if the Court had simply overruled.
This Article will argue that it is inappropriate for a Court to apply stare decisis to erroneous precedent if three conditions are not satisfied. First, a Court must have the power to overrule the previous case. Second, the previous case must be relevantly similar to the instant case. Third, the previous case must be erroneously decided. Applying stare decisis to erroneous precedent is only appropriate in this specific circumstance, and a proper understanding of these prerequisites will help the Court better understand how and when to apply the doctrine—avoiding further misuse of stare decisis.
The unfortunate consequence of misusing stare decisis is exemplified in Kisor v. Wilkie, where the Court invokes stare decisis to uphold a previous line of cases but simultaneously changes the rule laid out in those cases. In Kisor , the Court effectively eliminates a stare decisis prerequisite— erroneous precedent—by applying stare decisis while also changing the merits of the law. Applying a post-merits doctrine to the merits hollows out many policy benefits of stare decisis—the whole reason to apply the doctrine. The depletion of policy benefits is especially problematic in Kisor because stare decisis was the only basis on which the Court could form a coalition to uphold. Thus, by changing the law, the Kisor Court negates its only justification for upholding the case. Although Kisor proclaims “stare decisis,” it is but stare decisis in name only.
Repository Citation
Peter
Povilonis,
Sustaining Stare Decisis as a Post-Merits Determination,
27
U. Pa. J. Const. L.
655
(2025).
Available at:
https://scholarship.law.upenn.edu/jcl/vol27/iss3/3