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91 Tex. L. Rev. 1711 (2012-2013)
Precedent and Jurisprudential Disagreement

handle is hein.journals/tlr91 and id is 1805 raw text is: Precedent and Jurisprudential Disagreement Amy Coney Barrett* Introduction Over the years, some have lamented the Supreme Court's willingness to overrule itself and have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule.' In this Article, I point out that one virtue of the weak presumption is that it promotes doctrinal stability while still accommodating pluralism on the Court. Stare decisis purports to guide a justice's decision whether to reverse or tolerate error, and sometimes it does that. Sometimes, however, it functions less to handle doctrinal missteps than to mediate intense disagreements between justices about the fundamental nature of the Constitution.2 Because the justices do not all share the same interpretive methodology, they do not always have an agreed-upon standard for identifying error in constitutional cases. Rejection of a controversial precedent does not always mean that the case is wrong when judged by its own lights; it sometimes means that the justices voting to reverse rejected the interpretive premise of the case. In such cases, error is a stand-in for jurisprudential disagreement. The argument proceeds in three parts. After Part I explains the general contours of stare decisis, Part II develops the thesis that, at least in controversial constitutional cases, an overlooked function of stare decisis is mediating jurisprudential disagreement. Identifying this function of stare decisis offers a different way of thinking about what the weak presumption accomplishes in this category of precedent. On the one hand, it avoids entrenching particular resolutions to methodological controversies. This reflects respect for pluralism on and off the Court, as well as realism about the likelihood that justices will lightly let go of their deeply held interpretive commitments. On the other hand, placing the burden of justification on those justices who would reverse precedent disciplines jurisprudential disagreement lest it become too disruptive. A new majority cannot impose its vision with only votes. It must defend its approach to the Constitution and be sure enough of that approach to warrant unsettling reliance interests. Uncertainty in that regard counsels retention of the status quo. * Professor, Notre Dame Law School. 1. See infra notes 22-24 and accompanying text. 2. Cf Richard H. Fallon, Jr., How to Choose a Constitutional Theory, 87 CALIF. L. REv. 535, 537 (1999) (Anyone who cares about constitutional law confronts a large and proliferating number of constitutional theories, by which I mean theories about the nature of the United States Constitution and how judges should interpret and apply it.).

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