To Overrule or Not? Precedent and the United States Supreme Court

Eric J. Segall

Abstract


The principle of stare decisis in United States courts appears in two aspects – the courts of lower jurisdiction are bound by the rulings issued by the courts of higher jurisdictions and as a horizontal binding of the Supreme Court by its own rulings. The latter ‘binding’ is not as strong as the former one, which is reflected in the Supreme Court judges’ opinions and actions, which consist in both overruling their own precedents and highlighting the need for maintaining them. The changes of the Justices’ attitudes leads to a negative answer to the question whether precedent – which is binding only when the Supreme Court’s justices want it to be to be so – is binding precedent at all.


Keywords


precedent; stare decisis; overruling; U.S. Supreme Court

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References


https://deathpenaltyinfo.org/u-s-supreme-court-roper-v-simmons-no-03-633 [access: 15.02.2018].

Kozel R., Stare Decisis as Judicial Doctrine, “Washington & Lee Law Review” 2010, No. 67.

Public Funding for Religious Schools, www.pewforum.org/2009/05/14/shifting-boundaries5 [access: 10.02.2018].

Ratner S., Was the Supreme Court Packed by President Grant?, “Political Science Quarterly” 1935, No. 50.

Segall E., Supreme Myths. Why the Supreme Court is Not a Court and Its Justices Are Not Judges, Santa Barbara–Denver–Oxford 2012.

Standler R., Overruled: Stare Decisis in the U.S. Supreme Court, www.rbs2.com/overrule.pdfhttp://www.rbs2.com/overrule.pdf [access: 10.02.2018].

Warren C., The Supreme Court in United States History, Boston 1926.

www.thegoldstandardnow.org/the-legal-tender-cases [access: 10.02.2018].




DOI: http://dx.doi.org/10.17951/sil.2018.27.1.75
Data publikacji: 2018-05-02 07:55:22
Data złożenia artykułu: 2018-02-10 23:01:50

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