Supermajority Stare Decisis

Requiring a supermajority vote to overrule precedent is a simple mechanism for responding to the complications created by interpretive pluralism. Rather than revising the doctrine of stare decisis for the second-best world, the supermajority approach permits the consideration of any factor – from procedural workability to factual accuracy to all manner of substantive effects – that an individual Supreme Court justice deems relevant to a precedent's retention. By increasing the number of justices whose votes are needed to jettison a precedent, the supermajority requirement raises the probability that the Court's collective decision to overrule must bridge methodological divides.Footnote ¹

In a pluralistic legal environment, it will often be difficult to cobble together a supermajority to overrule unless a precedent is unacceptable from multiple perspectives. Depending on the composition of the Court, building even a five-justice majority may require considerable compromise. As the requisite number of votes rises to six or seven, it becomes decreasingly likely that a majority coalition could overrule a precedent without drawing together adherents of competing methodological schools. Preserving precedents absent supermajoritarian disapproval is a way of reducing the impact of interpretive disagreement (at any given moment) and vacillation (across time).

Supermajority stare decisis resembles an approach laid out by Jacob Gersen and Adrian Vermeule in their examination of the Chevron doctrine of administrative law.Footnote ² They emphasize the conceptual problems that arise when “individual decision-makers are charged with internalizing a legal norm of deference that is conceptually ill defined and that cuts against both their individual judgments of what is best and their biases and prejudices.”Footnote ³ Instead of asking individual judges to defer to administrative agencies, Professors Gersen and Vermeule contend that agency interpretations should be upheld unless a supermajority of the reviewing court believes them to be incorrect. Through this modification of ordinary voting rules, deference becomes “an emergent property of the aggregate vote, rather than of individual decisions.”Footnote ⁴ While their focus is administrative law, Professors Gersen and Vermeule briefly extend their claims to the operation of stare decisis, where a supermajority requirement could “avoid[] the inevitable uncertainty involved in lumpy linguistic formulations like ‘strong’ and ‘super-strong’ deference accorded to prior judicial decisions.”Footnote ⁵

The structural version of second-best stare decisis adopts a similar rule while emphasizing a different rationale: the need to overcome methodological pluralism. Under the supermajority approach to stare decisis, each justice makes her own decision about the durability of precedent. Though the justices' votes are aggregated, their analyses are personal and distinctive. As with the doctrinal version of second-best stare decisis, the likely effect of a supermajority voting rule is a reduction in the number of overrulings. But that result, while consistent with the justices' descriptions of stare decisis as the rule rather than the exception, is less important than the creation of a framework that increases the conceptual distance between the durability of precedents and the prevalence of various interpretive methodologies.

Implementation

There are two ways the Supreme Court might implement supermajority stare decisis. First, it could adopt the supermajority requirement through its case law and internal practices. Second, it could formally amend its operating rules. Templates exist for both approaches. The “Rule of Four” regarding the votes necessary for certiorari does not appear in the Court's formal rules. Similarly, the Marks principle, which governs the binding effect of fractured Supreme Court decisions, arose from the Court's case law.Footnote ⁶ By contrast, the Court's official rules describe the factors that are relevant to certiorari, albeit not in much detail.Footnote ⁷

Though both options are defensible, the better course for implementing the supermajority voting requirement is a revision to the Court's rules. After the rules were updated, the procedure for overruling would be set forth clearly in an accessible and integrated document. Following the change, there would be little chance that a five-justice majority might depart from the supermajority requirement within the confines of a significant or controversial case.Footnote ⁸ The supermajority requirement would remain in place unless and until the Court formally removed it, reflecting the stability and predictability that stare decisis seeks to provide.

Moving toward Minimalism

In evaluating supermajority stare decisis, it is important to consider its potential impact on the content of judicial opinions. If enough justices were sympathetic to a particular methodological school, the Supreme Court could explain its reasons for overruling disfavored precedents in significant depth notwithstanding the requirement of supermajority agreement. In periods of pluralism, however, there may be no single theory that encompasses the various reasons why different justices voted to overrule. As a result, we would expect the Court's majority opinions to exhibit a minimalist account of stare decisis. That phenomenon is already a possibility under an approach that requires five votes to overrule. Increasing the requisite number to six or seven would make it more likely that opinions of the Court would need to be minimalist in their reasoning.

The minimalist account would allow joint decisions regarding the durability of precedent without the need for intricate theories about what makes a precedent susceptible to overruling. The problems posed by interpretive pluralism would not stand in the way of pronouncements on the fate of precedent. As Cass Sunstein has explained, minimalism responds to interpretive pluralism by shifting the focus to “concrete outcomes” that are acceptable to judges of varying interpretive stripes. Minimalism's endgame is the construction of “[i]ncompletely theorized agreements.”Footnote ⁹ Judges may not agree “all the way down,”Footnote ¹⁰ but they can act collectively based on the beliefs they do share. Through the fashioning of incompletely theorized agreements, judges also evince a healthy “reluctance to challenge the basic commitments of one's fellow citizens when it is not necessary to do so.”Footnote ¹¹

The introduction of a supermajority requirement for overruling could be expected to amplify the role of incompletely theorized agreements in Supreme Court decision-making. Increasing the number of justices whose votes are required to overrule leads to a corresponding increase in the chances that some justices within the overruling coalition will disagree on matters of interpretive methodology. Rather than declaring an impasse, the justices could take a minimalist approach by joining an opinion that renounces the applicable precedent without furnishing a detailed rationale.

Comparing the Doctrinal and Structural Approaches

Notwithstanding their shared attention to the challenges of interpretive pluralism, the doctrinal and structural versions of second-best stare decisis differ dramatically. The doctrinal approach developed in Chapter 6 draws on the distinction between considerations that can operate independently of interpretive methodology and considerations that cannot. The structural alternative avoids the need for such distinctions by increasing the number of justices whose votes are required to overrule.

The supermajority requirement operates as if the overruling of precedent is essentially a matter of judicial will – of “having the votes.” Each justice may take into account whatever factors she wishes and defer to her successors as much or as little as she likes. Deference to the past occurs through the aggregation of multiple justices' behaviors, not necessarily through the choices of justices as individuals.

The doctrinal approach works differently. It asks each justice to subordinate her personal views in order to keep faith with the Court's institutional identity. While the structural approach has the advantage of simplicity, the doctrinal approach is geared toward promoting impersonality at the level of the individual.Footnote ¹² If justices invoke stare decisis to defend precedents they like but withhold deference from precedents they disapprove – even if they do so under a regime that requires supermajority support for overrulings – stare decisis relinquishes much of its ability to promote the Court's operation as a unified institution rather than an accumulation of individual actors. Given the centrality of impersonality to the nature of stare decisis as the Supreme Court has described it, this sacrifice is problematic. Indeed, in my view the structural solution is inferior to the doctrinal version of second-best stare decisis set forth in Chapter 6 precisely because the former fails to promote impersonality at the level of the individual jurist. Nevertheless, for those who have concerns about the doctrinal approach, the structural variant warrants consideration as an alternative response to interpretive pluralism.Footnote ¹³