Elements of Law 3.0 Notes and Reading IV-D (The Role of the Courts: Stare Decisis in Constitutional Cases and Under State Law)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law." (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum). The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we consider the another part of section IV of the materials:  IV.D. The Role of the Courts: How Courts Engage With Law: Stare Decisis in Constitutional Cases and Under State Law.   Comments and discussion most welcome.

 The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

IV.D. The Role of the Courts: How Courts Engage With Law: Stare Decisis in Constitutional Cases and Under State Law.

Notes for

--Planned Parenthood of SE PA v. Casey, 505 U.S. 833 (1992) (federal)
--Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450 (1962) (state).

We have been considering the central role of courts in the application of law and judicial approaches to statutory interpretation, including its authority to determine that legislative activity (and executive as well e.g., Steel Seizure Case) is beyond the authority of the legislature and thus inapplicable by the courts to resolve disputes brought before them. We have also considered the methodologies courts have used to construe statutes, especially in the face of ambiguity of meaning. Central to that discussion was the underlying principle of judicial action that preserves the legitimacy of the judicial function. The debates around the value of such methodologies--from the canons of construction to the use of legislative history, from the primacy of formalism and text based analysis as deferential to the legislative function to the primacy of functionalism in deference to the objective of legislative action--all touch on the issue of the legitimacy of judicial actions in the context of the central function of the judiciary, to resolve specific disputes brought to them.

But we early learned that central to the project of legitimacy of law is consistency and predictability. Recall the Institute's notion of justice and law: "Justice is the set and constant purpose which gives to every man his due. . . .  The precepts of the law are these: to live honestly, to injure no one, and to give every man his due." (Institutes, Book I, Justice and Law).  Where the courts assert a power to interpret and implement law (including statutory and constitutional law), the question arises--how do courts ensure predictability and consistency in their reading and application of the law?  Put differently, how do judges protect the coherence of law?  And further, how do they accomplish this task in unison, that is, as a body of judges, rather than as individuals? 

In a civil law system, in its pristine and theoretical extreme case traditional forms, the answer to these questions rest on the institutional integrity of the codes of law that have been crafted through the legislature.  The answer to every question may be found in or deduced from the code, and a fair reading of the code will produce the same or similar results in similar cases without the need to rely on previous efforts. To the extent courts engage in gap filling efforts, those also, at its limit should also be readily ascertained with certainty and predictability of every curt considering the issue. To the extent cases are considered, their value is persuasive In jurisdictions with a common law tradition and without a history of law codes the occupy fully the field of law,  though this is chaging a but in contenporary civil law systems. (e.g., Vincy Fon, and Francesco Parisi, "Judicial Precedents in Civil Law Systems: A Dynamic Analysis. International Review of Law and Economics, Forthcoming," George Mason Law & Economics Research Paper No. 04-15; Minnesota Legal Studies Research Paper No. 07-19; generally, John Henry Merryman, Rogelio Pérez Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America 34-48 (3rd ed., Stanford University Press, 2007)).

In common law systems, the answer also must be institutional and structural.  But in this case it is grounded on the use and value of cases beyond the decision itself, and beyond the parties to them, that is with the structures around which the precedential value of cases are constructed. In other words, judicial systems are institutionally constructed through their own decisions. The rules for determining when such prior decisions may be considered, must be considered, or may be ignored, rejected or their application expanded or contracted, serves as the basis for an institutional assurance of stability and certainty in the construction and application of "law" by the courts, as an institutional actor, rather than as the aggregate of individualistic and unconstrained discretionary decisions by people merely because they have been accorded the title of "judge."  This, then, serves as the method by which common law and civil law judges both serve the same functional ends.  The old idealized civil law judge through the application of the code by deploying the methods and logic of interpretation that should lead to the same end result in all similar cases, the idealized common law judge through the application of prior case law (along with statute or Constitution when applicable) by deploying these to produce the same end result in similar cases. Thus, all of this in the service both of institutional coherence and in the construction of a coherent legal framework that all stakeholders can rely on for producing substantially similar results under substantially similar circumstances.  And thus an essence of rule of law.

At the heart of the rule structures of "precedent" is the doctrine of stare decisis (almost literally from the Latin, "let the decision stand"), which encapsulates a rule of binding precedent, whose contours we consider briefly with these readings extracted from recent cases. In this form, common law can acquire an institutional form and stability that may equal that of civil law codes.  The accumulated application of case law to the resolution of disputes creates a thick web of articulation of legal standard,s and of the form and effect of the application of these substantive standards, that produces a solidity to law.  That solidity is retained through string political and ideological work--which is in turn focused on the training of lawyers and judges and the maintenance of a common culture and mission.  This was most highly visible in the 17th century in England

Corwin well recounts this idea in action in the famous confrontation between Coke and James I at Hampton Court on November 10, 1608, in which the judges of the Realm sought to resist the notion that James, as King, had authority to decide cases at Common Law in his own person (Corwin 1955, 38-39). Responding to the idea that reason alone was sufficient to apply the law, Coke responded that “causes which concern the life, or inheritance or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of the law which law is an act which requires long study and experience before a man can attain to the cognizance of it” (Corwin 1955, 38-39). (Reifying Law: “Let Them Be Lions”, Law at the End of the Day, Oct. 22, 2006; citing Corwin, Edward S. 1955. The “Higher Law” Background of American Constitutional Law. Ithaca, NY: Cornell University Press.)

Those notions of autonomy, self-referencing based on constant communication through cases among a separate class of actors (judges and lawyers) continue to serve to preserve systemic integrity.  Indeed, one can understand a principle function of the law school as a site where the student is not merely exposed to a cook book of cases and trained in the mere application of cases (the lawyer's "craft") but is also socialized into the culture of the lawyer/judge, becoming a cadre in a group whose loyalty to "law" is taught to be expressed in particular ways.  Yet stare decisis, to the extent it applies to the construction of statutes and constitutions , may take the role fo the judge beyond judging and into the realm of legislation.  The very process of providing coherence by requiring application of prior interpretation of statutes and constitution, may well give legislative value to these decisions in ways that may sometimes overtake the law itself.  There are many areas of statutory law where judicial glosses of statutes are far more important to its application than the text of the statute itself. On the one hand this does nothing more than permit coherence and legal certainty in the application of law to future disputes.  On the other hand where judicial precedent is treated as equally binding to the underlying statute or constitution it appears that judges may be making law by bypassing the legislature (or the people).  Of course both arguments, taken to extreme, are silly.  But drawing the lines within the premises of our system has been quite difficult.


Indeed, that difficulty is compounded as both the nature of precedent and the understanding of stare decisis has changed profoundly over the course of the centuries, though its object has not, especially after the middle of the 20th century.  (e.g. James W. Moore and Robert S. Oglebay, "The Supreme Court, Stare Decisis and Law of the Case," Texas Law Review 21:514 (1943). But these changes, like common law itself, necessarily reflects the changing nature of the customs and traditions from which it draws its essence and legitimacy within common law culture.  For all that, and particularly in constitutional law cases, the doctrine and scope of stare decisis remains highly controversial, and all the more so since the 1980s, when the great ideological rifts about the nature and role of judging, and of judicial decisions (e.g., Elements of Law 3.0 Notes and Reading IV-C (The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation) began to take current form.

We start first by unpacking the notions bundled with stare decisis, by considering what I will call: (1) vertical precedent (stare decisis); (2) horizontal precedent; and (3) self binding precedent (the binding nature of a court's own prior precedent). The basic rules are simple enough, though complicated by the federal organization of the U.S., and the proliferation of governments, general and state, each with its own judicial system, autonomous but interrelated.

Vertical precedent (or stare decisis) can be understood as part of the practices of a vertically ordered unified court system.  Thus, in its simplest form, this form fo the doctrine imposes on lower courts the obligation to apply the precedents generated by directly superior courts (appellate and supreme courts). Within a single system, the lower court must apply the "wisdom" of the higher courts; failure to do so will likely produce a reversal of the decision on appeal.  Yet ironically, the deliberate rejection of such precedent in these circumstances is sometimes a useful vehicle for getting a superior court to reconsider its own prior precedent.

Notions of vertical precedent have seeped into administrative quasi-judicial practice as well.  Consider this from the California Department of Social Services website (2013) about the binding nature of administrative decisions on hearing officers in subsequent cases:

What is a Precedent?

"Precedent" is a group of decisions which include significant legal or policy determinations, and are designed to guide an Administrative Law Judge in deciding cases involving the Department of Social Services, Community Care Licensing Division. The authority to establish precedent for administrative matters, by identifying cases and certifying them, was established fairly recently although precedent is used routinely by judges in other civil cases and in criminal cases. The Department first adopted a number of decisions as precedent, in May of 1999. Precedent is important to parties in a legal case involving the Department, because the precedent establishes what the Department has done in the past, and why. The procedures that apply to an administrative case are in the Administrative Procedures Act and are more fully described by the Office of Administrative Hearings, which assigns judges to make the decisions in the cases.

Office of Administrative Hearing - This link will provide you with general information on the procedure, including information designed to assist the person representing themselves.

In what type of cases does the Department’s precedent apply?

The precedent applies to cases involving the Department of Social Services, an operator or applicant for a care facility, or an individual who resides in, works in, or is present in a care facility. Each of the decisions, which altogether constitute the precedent, are cases involving a care facility regulated by the Department of Social Services, Community Care Licensing Division. If someone is unclear as to whether a particular decision certified as precedent, applies to their case, they should present it to the Administrative Law Judge before or during the administrative hearing. Precedent is binding upon any case filed by the Department, to the extent that a case involves the same facts, legal or policy issues determined in the precedent.

How is a decision, which is relied upon as precedent, used?

The Administrative Law Judge is required to apply the principles of the Department’s precedent, to the extent that the facts and issues are the same. The judge’s final decision must be consistent with the precedential decisions. An attorney for the Department may, in an administrative case, bring one or more of the decisions to the Administrative Law Judge’s attention when it appears that the facts and other issues are the same or similar. If you are a respondent in a case involving the Department’s Community Care Licensing Division, and you believe that one or more of the decisions which the department identified as precedent is binding in your case, you should inform the Department and Administrative Law Judge at the time of the hearing or before the hearing.

Is there a summary of the Department’s precedent available to me?

Yes. The Department publishes an index which contains a summary of each of the cases which have been designated at precedent. The case number consists of the year the case was designated as precedent, followed by "CDSS" to indicate the California Department of Social Services, followed by a chronological number. You should use the name of the case along with the decision number, when you request a copy of a particular decision.

How can I obtain a copy of Department precedent?

Decisions designated as precedent, as well as the index, are available on the Department’s Community Care Licensing Division web site. Copies of these decisions may also be requested by contacting the Department’s Public Affairs Office at Department of Social Services, Public Affairs, MS 17-09, 744 P Street, Sacramento, CA. 95814. A charge of 10 cents per page will be assessed if your request exceeds 100 pages. (California Department of Social Services, Decisions Relied Upon as Precedent; to similar effect,   North Carolina Division of Employment Security, Precedent Decisions Governing the Contested Unemployment Insurance Matters Arising Under the Employment Security Law of North Carolina).

Horizontal precedent has three aspects in the U.S.  The first is the simplest, dealing with the binding nature of courts within a single system of decisions of courts at the same level.  In other words, are the state appellate courts of California bound by the decision of other state appellate courts of California.  The usual answer is no.  Rather such decisions are treated as persuasive--though the court need not be persuaded. Yet, either the rules of court or statutes may change this basic rule.  The second concerns the binding nature of the courts of one state by the courts of another state.  Again, the usual answer is simple--such decisions may have persuasive value (and as we have seen have been used often and effectively by state courts looking for guidance). But such decisions are not binding.  The third may be harder for non U.S. lawyers to understand--these concern the binding nature of federal court precedent on state courts bound, and the binding nature of state court decisions on federal courts. With respect to the first, state courts tend to be bound by federal judicial decisions construing federal law--statutes and federal constitution. Federal courts tend to be bound by state court decisions construing state law and constitutions. State courts may treat federal decisions construing state law as persuasive, or may reject it. Federal courts may consider state court decisions touching on application of federal statutory or constitutional law but is not bound thereby. While the borders of these divides are sometimes hard to see, these basic rules tends to be applied with some consistency.

Self-binding precedent tends to be the most malleable.  It suggests that a court is bound by its own prior interpretation of common law, of statutes and most problematically, of constitutional provisions.  It is perhaps best to understand this notion of self binding as a tool to advance rule fo law legitimacy and legal certainty.  If a court were not bound by its own prior decisions, if it approached each attempt to construe a statute or apply law as if it were writing on a blank slate, legal certainty would be eroded (in the sense that individuals could not rely on prior decisions for conforming their conduct to law with any certainty that such conformity will reasonably insulate them from liability). This argument likely carries the most weight with respect to the construction of statutes and common law.  It has been most controversial in constitutional cases. That controversy is explored in Planned Parenthood of SE PA v. Casey, 505 U.S. 833 (1992), the reading for this class.  The controversy arises, in part, because constraining courts by prior precedent may prevent courts from either correcting earlier error in decision or of  conforming decisions to changing circumstances.  We have seen both circumstances arise in case law in recent reading. The difficulty is particularly acute when construing the constitution of a state or the general government. Here the subordinate role of the courts (it may not displace the people as the general source of Constitutional authority) suggests that the dignity of its opinions (and constructions) and their status as "law" ought to be somewhat less than the text of the constitution it construes.  That argument carries less weight with statutes precisely because judicial error can be corrected by legislative action, something that does not occur infrequently.

The contours of precedent at the federal and state levels are nicely described in two important cases we discuss here: Planned Parenthood of SE PA v. Casey, 505 U.S. 833 (1992) (federal) and Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450 (1962) (state). Beyond their interest to the student for the substantive questions considered (which we will not treat here), these cases, in which the issue of precedent and its role in judicial construction of statutes and case law itself, provides a window on the current structure within which the underlying policies furthered by precedent are extracted, valued (within our system) and applied. What will become clear is that, even with respect to vertical stare decisis within a single judicial system, the binding nature of precedent is ultimately prudential, and can be avoided when other important policies might thereby be furthered.  Yet, precedent can also be understood as an important vehicle for judicial legitimacy.  It creates--beyond the fundamental structures for certainty and predictability in statutory construction and application (thus drawing on notions of fundamental justice back at least through the Institutes)--a mechanism for furthering rule of law by narrowing the space within which an individual judge could, with impunity, impose her own idiosyncratic view of either statute or case, and its application to a dispute before her.  The great disputes in the courts of the U.S., then, do not touch so much on the value of precedent and the importance of stare decisis.  Rather it touches on the mechanics for determining when precedent ought to be binding and when, instead, it ought to be rejected and prior decision rejected or repudiated. That mechanics, in turn, is built on policy balancing considerations, including the paramount policy pf preserving the institutional legitimacy of the courts.

Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450 (1962)provides a useful judicial recapitulation of the necessity for  binding precedent rules in vertically structured judicial systems, like those of most American states. The issue in the case was not complex--a municipal court applied the rule expressed in an opinion of a California Appellate court. An appellate department of the California Superior Court determined that an opinion of an Appellate Court, otherwise on point, was wrongly decided and refused to apply it.  The Supreme Court determined that this was error.  But it was not framed as a violation of a prudential rule for the good order of the California judicial system and in furtherance of legal certainty.  Rather, the Supreme Court characterized the error as going to the very jurisdiction of that court.  That is, stare decisis within the California State system was understood  as going to the limits of the power of California's inferior courts to exercise discretion.  "Under these facts, whether or not the . . . [appellate court] case was decided correctly, the appellate department of the superior court exceeded its "jurisdiction," as that term is used in connection with the writ of certiorari, in refusing to follow a rule established by a court of superior jurisdiction." (Auto Equity Sales, supra).

The California Supreme Court explained that certiorari must be understood as a jurisdictional writ, one that frames the limits and scope of the power of a court.

While it cannot be used to attack an error of a lower tribunal committed in the exercise of its jurisdiction, it is available when that tribunal has acted in excess of its "jurisdiction." . . .  The meaning of "jurisdiction" for  the purposes of certiorari and prohibition is different and broader than the meaning of the same term when used in connection with "jurisdiction" over the person and subject matter. . . .  In commenting on the meaning of "jurisdiction" in a prohibition case, it was said in Abelleira that, "Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari." (17 Cal.2d at p. 291.) (Auto Equity Sales, supra).

And in California, state inferior courts have no jurisdiction to reject otherwise applicable decisions of a superior court. 

Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court. (Auto Equity Sales, supra).

As such, the municipal court correctly exercised jurisdiction and the appellate department of the superior court did not.  Consider the Supreme Court's rationale for this argument, it at first blush appears somewhat circular: stare decisis doctrine is grounded in the requirement that inferior courts follow the decisions of superior courts and if they fail to do so the doctrine makes no sense. But in order to make stare decisis "work" in California, it acquires the character of a jurisdictional limit.  That is, the California courts are without jurisdiction when they purport to exercise a judicial function outside of the constraints of stare decisis. But the circularity resolves itself when one considers the nature of the jurisdiction with respect to which the California Supreme Court grounds its decision.  That jurisdiction touches on the limits of the judicial power itself.A court that seeks to impose its own personal judgement on a dispute is seeking to act beyond the judicial power precisely because that court would substitute its own will for that of the law as represented by the holdings of superior courts.  In a sense, then, stare decisis is for this court, deeply intertwined with the fundamental ideal of rule of law.  And for this court, rule of law is represented by the respect for precedent, one that distances decision-making from the personality of a sitting judge.  

These ideas are explored more systematically in the harder case--whether a court ought to be bound by its own prior decisions. That was the essence of the issue in Planned Parenthood of SE PA v. Casey, 505 U.S. 833 (1992). It appears fairly clear that all justices have a somewhat common understanding of the value and role of precedent.  Where they differ is the extent of the force of precedent for the court that created it, and whether the standards for determining whether a prior precedent can be rejected, modified, or distinguished, ought to be different when the issue involves constitutional interpretation.  But both sides agree, as well, that where ever one draws the line, the rules are important for the preservation of the authority of the court and the legitimacy of the judicial function. The precedent at issue was Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the essential holding of which was described as having three parts:

First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.(Planned Parenthood, supra., Part I).

The question was whether Roe v. Wade would be applied to determine the constitutionality of a series of Pennsylvania statutes that sought to restrict a woman's access to abortions under five provisions of the Pennsylvania Abortion Control Act of 1982, as amended in 1988 and 1989. 18 Pa. Cons.Stat. §§ 3203-3220 (1990).  The answer depended, in part, on (1) the extent to which the Supreme Court ought to be bound by its own precedent, (2) the standards under which prior precedent may be repudiated; and (3) whether precedent ought to be less binding in constitutional rather than in other cases.

Justice O'Connor, writing for the Court, took a broad view of the binding power of prior precedent on the court.  She started by connecting notions of stare decisis with rule of law and the legitimacy of the judicial function. "The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. . . .  Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. . . . At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed." (Planned Parenthood., supra, Part III.A). 

She also notes the prudential nature of stare decisis, especially with respect to the binding nature of a case on the court from which it originated. 

Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an “inexorable command,” and certainly it is not such in every constitutional case. * * * * Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. (Ibid.).

Those prudential concerns include whether the rule is no longer workable, "whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation . . . ; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification." (Planned Parenthood, supra).  Justice O'Connor applied these prudential rules to Roe v. Wade and determined that none of the factors favoring rejection of precedent applied with sufficient strength to warrant abandoning the court's own prior precedent. 

The sum of the precedential enquiry to this point shows Roe's underpinnings unweakened in any way affecting its central holding. While it has engendered disapproval, it has not been unworkable. An entire generation has come of age free to assume Roe 's concept of liberty in defining the capacity of women to act in society, and to make reproductive decisions; no erosion of principle going to liberty or personal autonomy has left Roe 's central holding a doctrinal remnant; Roe portends no developments at odds with other precedent for the analysis of personal liberty; and no changes of fact have rendered viability more or less appropriate as the point at which the balance of interests tips. Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe 's central holding, with whatever degree of personal reluctance any of us may have, not for overruling it. (Ibid., III.A.5).

Justice O'Connor then considered whether, because the case at issue touched on constitutional interpretation,  additional factors ought to be considered. "In constitutional adjudication as elsewhere in life, changed circumstances may impose new obligations, and the thoughtful part of the Nation could accept each decision to overrule a prior case as a response to the Court's constitutional duty." (Ibid., III.B). But Justice O'COnnor suggested that circumstances had not changed--only the composition of the Court which decided Roe v. Wade nineteen years before.  A such, the need driving the effort to undermine the precedential force of Roe amounted to little more than an effort by current members of the Court to revisit a case they might have decided differently, had they been members of the Supreme Court  in 1973.

Because neither the factual underpinnings of Roe's central holding nor our understanding of it has changed (and because no other indication of weakened precedent has been shown), the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided. (Ibid).

It is precisely this tendency--to weaken stare decisis as the membership (and ideological leanings) of the Supreme Court changes, was, to Justice O'Connor, a serious threat to the legitimacy of the Court and of the authority of its exercise of the judicial function in constitutional cases. 

Our analysis would not be complete, however, without explaining why overruling Roe's central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law. To understand why this would be so it is necessary to understand the source of this Court's authority, the conditions necessary for its preservation, and its relationship to the country's understanding of itself as a constitutional Republic. (Ibid., III.C).

Thus, like the California Supreme Court in Auto Equity Sales, Justice O'Connor connects the prudential rules of stare decisis, even in the context of adherence to prior precedent by a court of its own holding, with the legitimacy of the assertion of judicial power and the protection of rule of law principles.

The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands. (Ibid),.

Judicial legitimacy, and the adherence of the courts to the constraints of the judicial function are the basis for the authority of the Court to interpret the constitution and to have those interpretations respected.   But that legitimacy, and the form of the judicial function itself, must be grounded int he application of principle and the collective judgement of the court, rather than the personal discretion of a particular judge considering a particular case.

But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation. (Ibid).

Again, the over-riding objective of the techniques of decision making, from the canons of construction, to  the methods of determining interpretation from text or intent, to the role of precedent within and between judicial systems, and, ultimately, of the court's willingness to apply its own precedents to itself, are all grounded in the need to protect the legitimacy of the judicial role.  And that legitimacy is grounded in the institutionalization of rules that provide for certainty and predictability of decisions that limit the personal discretion of judges to impose their own personal views.  Stare decisis reinforces the notion that judges do not act arbitrarily.

There is, first, a point beyond which frequent overruling would overtax the country's belief in the Court's good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation. (Ibid).

This, O'Connor explains, is especially the case where the Court decides an issue that is part of an intensely divisive controversy.

 But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. (Ibid).

No good can come of this, according to Justice O'Connor.  And its most important cost would be the erosion of the structural support for rule of law that turns on respecting stare decisis. Carrying forward the insights we first encountered in the definition of justice in the Institutes, Justice O'Connor argues that stare decisis, and its fidelity to consistency in the application of law, is the ultimate foundation of effective rule of law systems, and in the popular acceptance of the role of the courts as the interpreters of statutes and constitution.

To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. From the obligation of this promise this Court cannot and should not assume any exemption when duty requires it to decide a case in conformance  with the Constitution. A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that. (Ibid).

And once lost, the legitimacy of the Court will be difficult to regain. "If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible." (Ibid).

Pretty words indeed, but beside the point, argue the Chief Justice concurring in the judgement in part and dissenting in part.  The Chief Justice first suggests that the discussion of stare decisis, while lofty, was mere dicta, since the object of that discussion was to avoid the critical statement--that Roe was correctly decided and must be applied.

In our view, authentic principles of stare decisis do not require that any portion of the  reasoning in Roe be kept intact. “Stare decisis is not ... a universal, inexorable command,” especially in cases involving the interpretation of the Federal Constitution. . . .  Erroneous decisions in such constitutional cases are uniquely durable, because correction through legislative action, save for constitutional amendment, is impossible. It is therefore our duty to reconsider constitutional interpretations that “depar[t] from a proper understanding” of the Constitution.* * * *Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question. (Ibid., Rehnquist Part II).

Rehnquist then suggests that O'Connor failed to apply the standard she announced for overturning prior precedent.Most tellingly, for the Chief Justice, is that there are no reliance issue with respect to Roe--no one has been acting in reliance on the continued fidelity of the Courts to the Roe v,. Wade decision. As such, there is little prudential reason for adhering to that decision if, in fact, it ought to have been decided the other way.

The joint opinion thus turns to what can only be described as an unconventional-and unconvincing-notion of reliance, a view based on the surmise that the availability of abortion since Roe has led to “two decades of economic and social developments” that would be undercut if the error of Roe were recognized. Ante, at 2809. The joint opinion's assertion of this fact is undeveloped and totally conclusory. . . . In the end, having failed to put forth any evidence to prove any true reliance, the joint opinion's argument is based solely on generalized assertions about the national psyche, on a belief that the people of this country have grown accustomed to the Roe decision over the last 19 years and have “ordered their thinking and living around” it. Ante, at 2809. (Ibid).

Rehnquist note, quite rightly, that multi-generational retention of decisions subsequently overturned by the courts, including the separate but equal doctrine  (Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896)) and the primacy of freedom of contract to constrain governmental regulation (Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905)) were easy to square with conventional notions of stare decisis.

For that reason, Rehnquist argues, the appeals to judicial legitimacy ring false in this case. The protection of legitimacy in controversial cases has not been a bar to the application of ordinary rules of stare decisis without fear of loss of legitimacy. "Although many of the Court's decisions divide the populace to a large degree, we have not previously on that account shied away from applying normal rules of stare decisis when urged to reconsider earlier decisions. Over the past 21 years, for example, the Court has overruled in whole or in part 34 of its previous constitutional decisions." (Ibid).  If there is nothing special about Roe v. Wade to distinguish it from the ordinary controversial case of constitutional application then there should not be a stronger rule of stare decisis and the court ought ot be free to reject or narrow its prior ruling as it sees fit, especially to correct error.

O'Connor and Rehnquist present the two sides to the current debate about the scope and role of precedent in its most important role--binding the nation's supreme court to its prior holdings--and thus signally to all inferior courts, and to potential litigants, of the certainty that the holding and perhaps the reasoning in the prior cases will be applied by the Supreme Court and must be applied by inferior courts. On the one hand, Chief Justice Rehnquist narrows stare decisis both as to its scope (the holding) and force (to be binding on inferior courts to be sure but essentially only of only persuasive effect as prior opinion).  This reading suggests the concern, raised by Chief Justice Marshall in Marbury v. Madison, of the foundational dilemma of the judicial function--the contradiction of being forced to apply a law or rule that is invalid or unconstitutional.  It was that problem, of course, that led to the articulation of the rule of judicial review of legislation for conformity to constitutional constraints.  That need to test for conformity to constitutional constraints ought to apply as much to judicial decisions interpreting statutes (and constitutions) as it applies to legislation.   Yet, it is possible that Rehnquist underestimates the importance of stare decisis as a disciplinary tool in the service of rule of law in the exercise of the judicial function.  Courts do not look for constitutional trouble in legislation, the same ought to apply to its own constructions of the constitution itself.

On the other hand it is possible that O'Connor reconstructs stare decisis as something that is quite broad--as a corpus of glosses on constitution (and as well legislation) that must acquire a dignity close to that of the text interpreted and applied to the context of particular disputes,.  That construction, then, becomes as broadly applicable as the underlying text--be it constitution or legislation or regulation. But such a construction suggests an equivalence between judicial construction and the underlying legislative text that is belied by the historical practices and understanding of governments  in the Anglo-American legal universe.  It suggests the character of the rigidity of text to case law that by its very nature, within the culture of common law, is essentially and necessarily malleable and contextually developed, a dispute at a time.  To suggest a legislative character to judicial construction of text might well undermine the judicial function itself. By turning stare decisis into a concept that extends the functional characteristics of statutes to the opinions and holdings of cases interpreting statutes or constitutions, the  O'Connor suggests a characterization of judicial opinion that is consonant with the broadest readings of Cooper v. Aaron.  In this way Juster O'Connor may overestimate the force and application of cases that interpret either statute or constitution in a way in which the critics of Cooper have suggested extends the judicial authority beyond its jurisdictional limits.

Between the dilemmas of Marbury and Cooper there may be little room to harmonize  concepts of stare decisis and the rules for guiding courts in the binding nature of their prior opinions. Yet that may not be the most important insight of the opinions in Planned Parenthood.  Instead, the most important lesson of all, nicely evidenced in Planned Parenthood, is that however difficult it may be to describe the concept of stare decisis, and to fashion a standard governing the rules under which a court ought to be bound by its prior opinions, the application of the concept is very much contextually driven--it is a function of the facts and circumstances of particular disputes in particular cases with particular histories. One can develop a general sense of the direction of a court with respect to the likelihood that it will respect and apply its prior precedents the way common law lawyers learn to predict the direction of judgements in cases sounding in equity. Though it may be difficult to predict those circumstances when a court will be more or less inclined to respect and apply its own precedents, it is not impossible.  The general presumption is that a court will apply its prior precedents but is not obligated to do so.  Courts have developed a number of standards against which to test the continued viability or legitimacy of prior precedent.  Each suggests a balancing of factors that are contextually driven.  (e.g., Larry Catá Backer, “Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges“, William & Mary Bill of Rights Journal 12(1):117-178 (2003)). The more contentious an issue or interpretation, the more often the precedent itself is challenged by litigants in courts, the more likely that sooner or later the court will revisit the value of the precedent. The difficulty, of course, is inherent in the nature of the standard applied to determine the circumstances under which it is legitimate to reject or modify prior precedent.  That standard, based on weighing and balancing qualitative factors,  makes each determination highly contextual the lessons of which may be difficult to transpose to different cases.