[4][11] The term originates from the Latin phrase stare decisis et non quieta movere, meaning to "stand by the thing decided and do not disturb the calm.
[14] By taking this approach, the Court has rejected a strict view of stare decisis that would require it to uphold past rulings regardless of their merits or the practical consequences of maintaining or overturning them.
In contrast, Obiter dictum|obiter dicta (“something said in passing”) refers to comments, suggestions, or observations made by a judge in an opinion that are not necessary to resolve the case at hand.
As one practical effect, the U.S. Department of Justice settles many cases against the federal government simply to avoid creating adverse precedent.
By contrast, court decisions in some civil law jurisdictions (most prominently France) tend to be extremely brief, mentioning only the relevant legislation and codal provisions and not going into the ratio decidendi in any great detail.
[citation needed] In other civil law jurisdictions, such as the German-speaking countries, ratio decidendi tend to be much more developed than in France, and courts will frequently cite previous cases and doctrinal writers.
But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.
The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.
...In his "landmark dissent" in Burnet, Brandeis "catalogued the Court's actual overruling practices in such a powerful manner that his attendant stare decisis analysis immediately assumed canonical authority.
[32]Lord Hodge of the UK Supreme Court quoted[33][34] Lord Wright in 1938 saying: [T]hat is the way of the common law, the judges preferring to go from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point, and avoiding the dangers of the open sea of system or science.Precedent viewed against passing time can serve to establish trends, thus indicating the next logical step in evolving interpretations of the law.
The existence of submerged precedent (reasoned opinions not made available through conventional legal research sources) has been identified as a potentially distorting force in the evolution of law.
The United States Supreme Court considers stare decisis not only as an important doctrine, but also "the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.
[38] By adhering to stare decisis the Supreme Court attempts to preserve its role "as a careful, unbiased, and predictable decisionmaker that decides cases according to the law rather than the Justices' individual policy preferences.
"[38] In Vasquez v. Hillery (1986) the Supreme Court stated succinctly that stare decisis "contributes to the integrity of our constitutional system of government, both in appearance and in fact" by maintaining the notion "that bedrock principles are founded in the law, rather than in the proclivities of individuals.
Thanks to stare decisis lawsuits can be quickly and efficiently dismissed because legal battles can be resolved through recourse to rules and principles established prior decisions.
[38] The following is a non-exhaustive list of examples of these statements:[41] Stare decisis applies to the holding of a case, rather than to obiter dicta ("things said by the way").
[42] In the U.S. Supreme Court, the principle of stare decisis is most flexible in constitutional cases, as observed by Justice Brandeis in his landmark dissent in Burnet (as quoted at length above).
[47] The opinion of Chief Justice John Roberts in the case June Medical Services, LLC v. Russo provides a clear statement of the strong conception of stare decisis.
In this case, the Court upheld, by a 5–4 margin, their 2016 decision in Whole Woman's Health v. Hellerstedt that struck down a similar Texas law requiring doctors who perform abortions to have the right to admit patients at a nearby hospital.
This is the most strict form of the doctrine of stare decisis (one not applied, previously, in common law jurisdictions, where there was somewhat greater flexibility for a court of last resort to review its own precedent).
A good example of problems with this method is R v Maginnis (1987),[52] in which several judges in separate opinions found several different dictionary meanings of the word supply.
However, most legal texts have some lingering ambiguity—inevitably, situations arise in which the words chosen by the legislature do not address the precise facts in issue, or there is some tension among two or more statutes.
Occasionally, lower court judges may explicitly state a personal disagreement with the rendered judgment, but are required to rule a particular way because of binding precedent.
[57] Courts may choose to obey precedent of international jurisdictions, but this is not an application of the doctrine of stare decisis, because foreign decisions are not binding.
"[60] Caleb Nelson, a former clerk for Justice Thomas and law professor at the University of Virginia, has elaborated on the role of stare decisis in originalist jurisprudence: American courts of last resort recognize a rebuttable presumption against overruling their own past decisions.
In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current members, was demonstrably erroneous.
[T]he conventional wisdom is wrong to suggest that any coherent doctrine of stare decisis must include a presumption against overruling precedent that the current court deems demonstrably erroneous.
[61]One of the most prominent critics of the development of legal precedent on a case-by-case basis as both overly reactive and unfairly retroactive was philosopher Jeremy Bentham.
[62][63]In a 1997 book, attorney Michael Trotter blamed overreliance by American lawyers on precedent — especially persuasive authority of marginal relevance — rather than the merits of the case at hand, as a major factor behind the escalation of legal costs during the 20th century.
He argued that courts should ban the citation of persuasive authority from outside their jurisdiction and force lawyers and parties to argue only from binding precedent, subject to two exceptions: The disadvantages of stare decisis include its rigidity, the complexity of learning law, the fact that differences between certain cases may be very small and thereby appear illogical and arbitrary, and the slow growth or incremental changes to the law that are in need of major overhaul.