Document Type


Publication Date

Fall 2021


At the United States Supreme Court, what is old is new again. In a series of recent opinions,1 the justices have repeatedly offered differing views on how stare decisis should be positioned when tasked with justifying or rejecting existing precedent. Indeed, in three recent Supreme Court decisions the justices have wrestled with the effect of stare decisis on future decisions. Reversing a decision, according to Justice Kagan, “demand[s] a ‘special justification.’” In contrast, Justice Thomas posited that “[w]hen faced with demonstrably erroneous precedent, my rule is simple: We should not follow it.” Chief Justice Roberts, in explaining his switch in direction from a prior dissent, concluded that “[t]he legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike.” The result is that some precedent is retained while other precedent is discarded, which ensues the debate over whether the justices “practice what they preach.”

Copyright Statement

This document was originally published in University of Louisville Law Review by University of Louisville Brandeis School of Law. Copyright restrictions may apply.

Sam C. Ehrlich & Ryan M. Rodenberg, Tracking the Evolution of Stare Decisis, 60 U. Louisville L. Rev. 57 (2021).