Amy Coney Barrett

91 Texas L. Rev. 1711

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Over the years, some have lamented the Supreme Court’s willingness to overrule itself and have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule.  Professor Barrett argues that one overlooked virtue of this weak presumption is that it promotes doctrinal stability while still accommodating pluralism on the Court, i.e., it functions to mediate jurisprudential disagreement.  The doctrine of stare decisis avoids entrenching particular resolutions to methodological controversies while simultaneously limiting precedential reversal by placing the burden of justification on those justices who favor it.  Yet, insofar as it keeps open the prospect of overruling, the weak presumption undeniably comes at a cost to continuity.

Professor Barrett notes, however, that continuity on the Court does not rely as heavily on the strength of stare decisis as is commonly supposed and gives supporting examples such as the prohibition upon advisory opinions, the obligation of lower courts to follow Supreme Court precedent, the Court’s certiorari standards, its rule confining the question at issue to the one presented by the litigant, and the fact that the Court is a multimember institution whose members have life tenure.