Drawing on the work of Jeremy Waldron, I posted a two-part argument here and here for why I believe that the US Constitution entails some place for the authority of prior decisions of the Supreme Court when it and lower courts consider a similar issue. As I wrote in Part 1:
The Constitution doesn't say that judicial interpretive decisions shall not have precedential value. Of course, it doesn't say that decision should serve as precedents, either. There is no reason to take constitutional silence as prohibition or permission. So what should be the default position? Who has the burden of proof? The positivist or the precedentialist?
I can't say that I've heard the positivists address this point but it strikes me that they should bear the burden. Consider what Alexander Hamilton wrote in the Federalist No. 78: "To avoid arbitrary discretion in the courts, it is indispensable that they should be bound by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them." Hamilton wasn't addressing constitutional litigation but it strikes me that the Founders, coming as they did from the precedent-oriented system of the common law, would have presumed its place in such litigation.
And then in Part 2:
Several pragmatic reasons also exist for a court's limiting its power to overturn precedent. First, regular rejection of earlier decisions would eviscerate the overturning court's claims that its decision should have precedential effect. Second, a ramification of the principle of the rule of law augurs against changing laws too often. Waldron, quoting Joseph Raz, observes that "people will find it difficult to find out what the law is at any given moment and will be constantly in fear that the law has been changed since they last learnt what it was."
Yet, with all due respect to Waldron (and me), neither he nor I are a scholars of the US Constitution. Turning to someone who is, Randy Barnett, you can read his explication of a significant but circumscribed place for precedent in constitutional adjudication here.* Some enticing quotes:
Under the Classical View of stare decisis, the “holding” of a case is the ratio decidendi. That is, the rule that is logically entailed by the reasoning (“ratio”) that was necessary to decide the case (“decidendi”) on the basis of the legally-salient facts that were before the court. The holding of a case is the reasoning that explains the outcome in light of the facts reported by the Court. The objective is for future courts to decide cases with similar facts in the same way.
This formula limits the scope of judicial holdings in two ways:
First, holdings are a function of the reasoning that is necessary to the outcome of the case. Portions of an opinion that address questions or issues that do not need to be resolved in order to reach the outcome are discarded as “dicta.”
Second, holdings are limited to those reasons that address the legally salient facts presented by the record. Reasoning that addresses factual scenarios that were not presented to the court should not be considered in determining the holding of a case.
What's the point? "The Supreme Court Clause binds lower court judges to the ratio decidendi of Supreme Court precedents—and no more." In other words, judgments of the Supreme Court are not law in the sense of legislation. They are, however, part of the system of the rule of law. And a fundamental principal of the rule of law is that like cases be treated alike. Thus, what Barnett, drawing from the common law tradition, calls the Classical View of precedent is and must needs be constitutional.
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*You can read my comments from several years ago on Barnett's similarly helpful analysis of constitutional "rules of construction" here. Go here for my comments on a theological grounding for the place of precedent in the common law tradition.
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