Stare decisis "muddle"

Law4360 has Kavanaugh Suggests Way Out Of Stare Decisis 'Muddle'

Justice Brett Kavanaugh on Monday suggested a way to simplify the U.S. Supreme Court’s approach to overruling precedent, saying in a concurrence that the current “muddle” surrounding stare decisis “poses a problem for the rule of law and for this court.”

The factors that the Supreme Court typically considers when deciding whether to overturn precedent have been applied “without establishing any consistent methodology or road map for how to analyze all of the factors taken together,” Justice Kavanaugh explained. “In my view, that muddle poses a problem for the rule of law and for this court, as the court attempts to apply stare decisis principles in a neutral and consistent manner,” he said.

First, he said, the court should ask whether the prior decision was not just wrong, but “egregiously wrong.” Next, it should assess whether the precedent has caused “significant negative jurisprudential or real-world consequences.” Finally, he said, justices should examine the reliance interests of the parties before overturning a precedent.

Law.com's article is Justices Sharply Fracture Over When to Overturn Precedent: Justice Samuel Alito Jr.'s dissent began with his statement that "the doctrine of stare decisis gets rough treatment in today’s decision."