In Sustaining Stare Decisis as a Post-Merits Determination, Peter Povilonis offers an insightful and novel analysis of the U.S. Supreme Court’s stare decisis jurisprudence. He characterizes stare decisis as a procedural doctrine that, in its proper form, is separate from merits determinations. Just as some doctrines, including statutes of limitations and jurisdiction, are pre-merits matters, stare decisis, Povilonis argues, is meant to be a purely post-merits analysis.
This means that, in the horizontal context, stare decisis has effect if and only if the Court first determines that the precedent at issue is erroneous (or assumes for the sake of argument that it is erroneous, e.g., because the Justices disagree about that): the analysis “comes subsequent to a determination on the merits” (P. 671). The important upshot is that, once the Court makes the merits determination and moves on to the stare decisis inquiry, it can’t go back to re-assess the merits or improve the holding of the precedent. That, argues Povilonis, would be inconsistent with the post-merits methodology of stare decisis.
Why should we insist that stare decisis be implemented in a post-merits way? Povilonis argues that otherwise the doctrine would fail to serve its purpose, which, broadly put, is to serve values related to stability and efficiency. If the Court “upholds” a precedent only to revise the precedent’s reasoning, subsequent courts will have to figure out what the original precedent has come to mean, given the more recent decision.
This is exactly what has happened, explains Povilonis, in the wake of Kisor v. Wilkie (2019), where the Supreme Court proclaimed that it was upholding Auer v. Robbins (1997) and related cases while substantially altering the rule of deference to agency interpretations of regulations that those precedents stood for. This has resulted in confusion in the lower courts and even a circuit split about the meaning of Auer in light of Kisor. “The problem,” says Povilonis, “is that the Court engaged in a merits-based correction when deciding a post-merits question. This implementation of stare decisis in name only has created uncertainty about whether the aspects of the old doctrine now limited by Kisor’s new rule—like deference to unambiguous regulations—are still good law” (P. 683).
Povilonis’s view seems to assume that a decision either upholds the precedent at issue and we get the policy benefits of stare decisis, or the decision overrules the precedent and we get none of those benefits. The Court has to choose between issuing “a better legal rule but sacrificing other policy interests,” says Povilonis, or “uphold[ing] the case, obtaining the policy justifications but affirming an erroneous legal rule. The Court cannot have it both ways” (P. 693). I’m not sure about that. Even if a decision is based on substantially different reasoning from a precedent, it might maintain some consistency with the precedent and serve the stare decisis values to some extent. Further, I’m not sure that the Court is always in the best position to ascertain the extent to which it is overruling a precedent. That might be best worked out by lower courts as they encounter new facts.
For example, Povilonis invites us to imagine that, in Dobbs,
Instead of overruling Roe v. Wade, the Court claimed to uphold Roe. Yet, while ‘upholding,’ imagine the Court nevertheless laid out a new test which allowed for states to ban abortions [after] 15 weeks. Would Roe have truly been upheld? This example is not so imaginary, as it resembles the approach of a concurring opinion. See Dobbs, 597 U.S. at 352. (Roberts, C.J., concurring) (arguing that a state law prohibiting abortions [after] 15 weeks should be constitutional without having to overrule Roe). (P. 686, n.201.)
I’m not convinced that Justice Roberts’s position is untenable, nor that his opinion isn’t better for stare decisis reasons than the majority’s in Dobbs. It’s not implausible to think that an important part of the Roe/Casey holding involved protection of a meaningful opportunity to choose to have an abortion. And, as Roberts noted, if people were relying on those decisions, what they were relying on was that kind of protection—i.e., of a meaningful opportunity obtain an abortion—and not the specific details of the trimester framework or undue burden standard, technicalities with which few non-legal experts would have been familiar. Further, we can imagine a decision that upheld the abortion precedents but on entirely different grounds—for example, of equal protection rather than substantive due process. A decision like that, it seems to me, would have served some of the stare decisis values. Casey itself substantially revised Roe’s reasoning and holding, and yet I don’t think that decision completely undermined the purposes of stare decisis. It seems that Casey did protect reliance interests, certainly more so than a decision like Dobbs.
In any event, Sustaining Stare Decisis as a Post-Merits Determination is a welcome contribution to the literature on adjudication, legal reasoning, and the Supreme Court, bringing clarity to the fraught and often confusing practice of stare decisis. I think an important lesson to be taken from the article is that we should not take the Court at its word regarding whether it’s overruling a precedent; as Povilonis nicely illustrates, the Court sometimes effectively overrules a decision not merely without saying so, but even while insisting that it is upholding it. I would add that, likewise, perhaps sometimes the Court proclaims to overrule a decision when it really doesn’t have the power to do so, because the question before it is narrower. Just as we shouldn’t take it for granted that the Court is exercising as little law-changing power as it purports to, we should question whether the Court is exercising as much law-changing power as it purports to.
