The principle of stare decisis provides that courts should usually, but not always, follow their precedents. Recent Supreme Court decisions overruling major precedents confirm that stare decisis remains one of the most contentious issues in American law. The Court’s multi-factor balancing test for precedent—which considers factors including the degree of error and reliance interests—leaves the Justices so much discretion that it seemingly permits any result and invites accusations that decisions reflect politics rather than law. Scholars and Justices have responded by proposing myriad refinements to the multi-factor test, but the problem of precedent persists.
This Article offers a provocative new approach to stare decisis, arguing for the first time that the crisis of precedent stems from a profound but overlooked procedural change: high courts’ shift from mandatory to discretionary jurisdiction. For most of their history, the Supreme Court and state high courts had to hear every filed case. “Mandatory jurisdiction” meant courts repeatedly confronted the same question in rapid succession, creating important procedural rules that guided and constrained how courts handled precedent. A precedent gained strength if multiple panels endorsed it over time, effectively creating a supermajority voting requirement. Courts could reconsider questionable precedents quickly, before substantial reliance interests developed. And because courts lacked power to choose their cases, they were insulated from charges of strategic manipulation of precedent. Last year presented the centenary of the Judges’ Bill, which gave the Supreme Court almost complete discretion over its docket. Without the procedural constraints of mandatory jurisdiction, courts must rely solely on the subjective multi-factor balancing test that has generated so much discontent.
This Article’s insights reshape current debates about precedent and court reform. Returning to full mandatory jurisdiction is not practical, but targeted reforms can restore some of the procedural protections that guided courts’ treatment of precedent. So long as scholars and Justices overlook how the institutional changes identified here have removed vital procedural safeguards for precedent, they will overlook the sources of—and maybe solutions to—the persistent problem of precedent.