This raises really interesting questions about what stare decisis IS and when it’s appropriate to depart from it. Thread. As @joldmcginn and @cburset have noted, stare decisis originally reflected the understanding that one or more earlier cases correctly /1 https://twitter.com/attorneydad/status/1303068600144662529

described the custom—that is, the common law—of the time. Departure from precedent was therefore permissible when it could be shown that the early cases did not in fact correctly reflect custom. To a degree, that explains the Thomas and Alito positions in Gamble v. US— /2

the Court granted cert to examine the historical correctness of the same-sovereign element of double jeopardy, but left oral argument unconvinced that the Court’s precedent was wrong. But that traditional understanding of stare decisis doesn’t explain other cases. Consider, /3

for example, antitrust cases in the last 40 years (eg Leegin/Bus. Elec.) overturning the 100-year-old approach to vertical price fixing as per se illegal. That cannot be explained by stare decisis as custom. For one, the Court has described the “dynamic potential” /4

of the Sherman Act and its mutability “in adaptation to modern conditions.” That’s common law as change, not as custom. For another, no one claims that the economic arguments the Court cited (writings by Bork, Posner etc.) to justify its change of course were available when /5

the Sherman Act was passed or when the earliest antitrust cases about per se illegality (eg Dr Miles) were decided. This suggests that, at least sometimes, new facts justify the departure from modern stare decisis. We’ve seen also seen that modern-changed-conditions /6

justification in landmark cases like Brown v. Board and Erie Railroad—cases that were grounded in the constitution but that overturned old law based on new facts (the “feeling of inferiority” in Brown and the “mischievous results” of federal common law in Erie). This leads to /7

a separate but related problem—when may lower courts depart from SCOTUS precedent where factual developments undermine the rationale for the Court’s holding? @dorfonlaw has an excellent discussion of that question in the context of the challenge to the male-only draft, /8

available here: http://www.dorfonlaw.org/2020/08/vertical-precedent-in-challenge-to-male.html?m=1. As he points out, that depends on what precedent is to begin with. And as I hope this thread has shown, there’s no easy answer. Certainly, our stare decisis is not the Framers’ stare decisis. /end