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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*
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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