Is Stare Decisis Dead?

Last month’s decision in State v. Denny yielded a spirited discussion of stare decisis (often translated from Latin as “stand by things decided” or “let the decision stand”)—a principle that emphasizes the importance of adhering to the precedents set by earlier cases.  The precedent at issue in Denny was State v. Moran, a decision filed in 2005 that allowed petitioner James Moran to conduct DNA testing of evidence in possession of the state, if he could show that the evidence met certain statutory requirements, and if he paid for the testing himself.

The majority opinion in Denny (written by Justice Ziegler) quoted earlier decisions in a lengthy tribute to stare decisis—“This court follows the doctrine of stare decisis scrupulously because of our abiding respect for the rule of law” and “Time and again, this Court has recognized that ‘the doctrine of stare decisis is of fundamental importance to the rule of law.’”  Consequently, “any departure from the doctrine of stare decisis demands special justification.”  However, Justice Ziegler continued, stare decisis is a “‘principle of policy’ rather than ‘an inexorable command,’” and in the case of Moran, “special justification” existed to abandon precedent and overrule the decision.

Justice Ziegler’s majority opinion triggered an indignant dissent from Justice Ann Walsh Bradley, joined by Justice Abrahamson.  After repeating the quotation marshalled by Justice Ziegler (the court follows stare decisis “scrupulously because of our abiding respect for the rule of law”), Justice Bradley maintained that the principle of stare decisis should have restrained the majority from repudiating Moran.  “In sum, the majority opinion offers no persuasive legal, logical or factual reason for its decision to overrule Moran.  Instead it discards the doctrine of stare decisis, unearths a test never before used to justify overruling precedent, ‘imagine[s]’ a statutory purpose, rewrites the statute and ultimately ends with an absurd result.”

This alignment of justices—liberals invoking stare decisis in defense of previous rulings, and conservatives downplaying it as they sought to overturn or modify existing laws—has set a dominant tone for the court ever since 2008-09, when Justice Gableman’s replacement of Justice Butler gave the court a strong conservative majority that could generally nullify or alter previous decisions as it saw fit.  In State v. Houghton, for example, the majority rejected Houghton’s argument that drug evidence should be suppressed because it was obtained from a traffic stop that occurred as the result of a police officer’s mistaken understanding of the law.  Justice Abrahamson’s dissent (joined by Justice Bradley) complained that “[t]he majority opinion overturns not only the court of appeals decision in the instant case but also two prior decisions: [State v. Brown and State v. Longcore].  What happened to precedent and stare decisis?”

Despite the verbal respect for precedent shown by all justices, one might expect that those who nevertheless scrap or modify existing decisions are much less inclined than the dissenters to draw attention to the tenet of stare decisis.  We can gain a distinct sense of this from the results of a search for the term stare decisis in the court’s decisions over the past 20 terms, which turned up 49 decisions in which at least one justice either invoked or downplayed the imperative to stand by things decided.^[1]

During the last eight terms of this period (2008-09 through 2015-16), with the conservatives able to overturn past decisions, the court’s two liberals invoked stare decisis in dissent far more often than the phrase appeared in opinions of any sort written by all the other justices.  Nineteen times did Justices Abrahamson and A.W. Bradley author or join dissents that summoned stare decisis to bolster their arguments.^[2]  In contrast, Justices Prosser and Roggensack did not mention stare decisis at all in their opinions—neither to invoke it nor to downplay it—and the term appeared only six times in the opinions written by Justices Ziegler, Gableman, and Rebecca Bradley.  Just one of these six opinions was a dissent—a surprise from Justice Ziegler that we will revisit.^[3]  That left only Justice Crooks, who demonstrated again that the label “conservative” did not fit him as well as it does the court’s current majority.  He invoked stare decisis in two dissents (joined by Justices Abrahamson and A.W. Bradley), and he joined a third such dissent authored by Justice Bradley.  

How different the picture appeared during the years before the court’s conservative majority began its ascendance!  Over the 12 terms from 1996-97 through 2007-08, conservatives were more likely than liberals to invoke stare decisis in dissent, while liberals downplayed stare decisis in majority opinions more frequently than did conservatives—in both instances, the reverse of our findings from 2008-09 through 2015-16.  Thus, Justices Abrahamson and A.W. Bradley, who 19 times had authored or joined dissents that invoked stare decisis during the eight terms from 2008-09 through 2015-16, did so only seven times during the 12 previous terms.  Meanwhile, Justice Wilcox (a conservative even less disposed to vote with Justices Abrahamson and Bradley than was Justice Roggensack) authored or joined 8 dissents that invoked stare decisis.  Justice Roggensack herself did so three times, despite serving on the court for only five of the 12 terms in this period.^[4]  As for majority (or lead) opinions, those including arguments that downplayed stare decisis flowed more often from liberal than from conservative pens during the 12 terms before 2008-09—five opinions by Justice Abrahamson, one by Justice Bradley, and two by Justice Butler, compared to three by Justice Prosser and one by Justice Sykes.^[5] 

To cite but one example of this liberal-conservative role reversal on stare decisis during the years before 2008-09, Justice Abrahamson’s lead opinion in Bartholomew v. Wisconsin Patients Compensation Fund allowed expanded recovery in medical malpractice cases by overturning an earlier decision (Maurin v. Hall).  Justice Abrahamson began her discussion of stare decisis with the same quotation recruited by numerous justices over the years (including Justice Ziegler a decade later in State v. Denny), assuring readers that the court “follows the doctrine of stare decisis scrupulously because of our abiding respect for the rule of law.”^[6]  “Nonetheless,” she continued, “‘stare decisis is not a mechanical formula for adherence to the latest decision,’ and a court should, in applying the doctrine of stare decisis, overturn its own decisions when the situation calls for such a measure.”  Here was such an instance, she decided, and therefore Maurin “should be overruled, notwithstanding stare decisis.”

As Justice Abrahamson downplayed the limitations imposed by stare decisis with language resembling that employed by the conservatives dominant after 2008, Justice Roggensack assumed the role in Bartholomew later played by Justices Abrahamson and A.W. Bradley—that of invoking stare decisis in dissent.  “Adherence to stare decisis is crucial,” she explained, “because ‘[r]espect for precedent ‘promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’”^[7]  The lead opinion did nothing of the sort, she concluded, for it offered “an insufficient justification for ignoring stare decisis, one of the pillars that support the institutional integrity of the court.”

So, is stare decisis dead?  Or, to put it another way, is the doctrine manipulated to defend points of view that justices would act on in any event?  Dissenting justices, in their complaints over the majority’s abandonment of precedent, sometimes gave voice to such assessments.  In Coulee Catholic Schools v. LIRC, for instance, Justice Crooks protested that the majority opinion “fails to explain persuasively why this court should toss out the analysis that Wisconsin courts and a majority of other courts have been applying” and substitutes something “that appears to be merely a matter of preference for the majority.”  When newly-elected Justice Rebecca Bradley authored the majority opinion in St. Croix County Department of Health and Human Services v. Michael D., repudiating a portion of Waukesha County v. Steven H., Justices Abrahamson and A.W. Bradley objected that “[n]othing aside from the membership of the court has changed since Steven H.  A change in membership of the court does not justify a departure from precedent.”  One might conclude that whoever is in the minority invokes stare decisis to chastise a majority deemed activist, ideological, and dismissive of “the evenhanded, predictable, and consistent development of legal principles” demanded by stare decisis—to quote Justice Wilcox (dissenting in Johnson Controls)—who repeated the complaint that “[w]hen legal standards ‘are open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.’”  And, indeed, accusations of this sort have been directed at the United States Supreme Court for years.^[8]

Clearly there’s a balance to be struck between refusing ever to overturn a decision, no matter how appalling it may eventually come to seem, and overruling decisions routinely, according to the personal preferences of the justices who happen to occupy the bench at any given moment.  The doctrine of stare decisis itself recognizes grounds for overturning decisions, and the requirements are spelled out in opinions such as those cited above.^[9]  When disagreement arises, then, it nearly always centers on the question of whether the conditions for relaxing stare decisis’s grip have been met.

The credibility of stare decisis is shaken not so much by these disagreements alone, however, as by the impression that justices invoke or downplay stare decisis as it suits their own views (or the views of their major campaign donors).  Perhaps the core justification for stare decisis is that it promotes faith in the impartiality and stability of the judicial system—minimizing capricious changes in the law resulting from the arrival of new justices who alter the ideological complexion of the court.  Our survey of cases over the past 20 terms indicates that stare decisis is regularly weakened in this regard—a good deal more often than it is fortified, as would occur if a justice professed to feel bound by stare decisis to vote in a manner at variance with his/her personal preference.  From time to time, though, this principled stance is discernable, and we’ll cling to an optimistic tone in the conclusion by offering a few examples.

Consider State v. Patrick J. Lynch, a fractured decision in which Justice Gableman authored what the court presented as the “lead opinion.”  Many court watchers could have predicted that Justices Abrahamson and A.W. Bradley would rebuke Justice Gableman on stare-decisis grounds for arguing that two prior decisions (State v. Shiffra and State v. Green) should be overturned, but I suspect that fewer could have anticipated that Justice Ziegler would contribute her own dissent that also invoked stare decisis—at length—in rejecting Justice Gableman’s position.  Throughout this term (2015-16), Justice Ziegler voted with Justice Gableman in almost every case (94% of the time even in non-unanimous decisions), while siding with Justices Abrahamson and A.W. Bradley in only 19% of non-unanimous decisions.  The fact that Justice Ziegler did not join other conservatives alongside Justice Gableman in Lynch suggests that in this instance stare decisis was not moribund.  Although the Shiffra/Green decisions are “not perfect,” she wrote, “[u]nder the principles of stare decisis, I would not overthrow these well-established cases without ‘special justification,’ … and none has yet been provided.”

One could also surmise that stare decisis exerted an influence on Justice Abrahamson in Schultz v. Natwick, prompting her (in a majority opinion) to take a position that may not have fit comfortably among her own preferences.  Writing in November 2002, she acknowledged that a previous decision by the court (Neiman v. American National Property & Casualty Co.) had declared unconstitutional the legislature’s effort to raise the cap on certain damages in wrongful death cases.  Even though both Justice Abrahamson and Justice Bradley had dissented in Neiman, Justice Abrahamson now accepted this decision in her Shultz opinion, despite the fact that “Neiman is harsh for families of victims …” and contrary to the votes that she generally casts in such cases.

While neither Justice Ziegler nor Justice Abrahamson stated bluntly that they were taking positions that they would have rejected were it not for stare decisis, another justice made this connection clear.  Concurring in Scott v. Savers Property & Casualty Insurance Company, Justice William Bablitch (joined by Justice Crooks) explained in 2003 that “[a]lthough my sentiments are with the dissent, I concur only because I feel compelled by stare decisis to do so.  Although the majority’s result is consistent with past cases, it is also an unjust result.”

It may not be edifying in most instances to witness a person overriding his sense of justice in order to uphold past practice, but given the beating that stare decisis has often endured, Justice Bablitch’s comment retains some appeal here.

[1] Working with an initial harvest of 60 such decisions, I removed 11 from the bin, leaving us with 49 decisions in which at least one justice either invoked or downplayed the command of stare decisis.  In 10 of the omitted decisions, “stare decisis” appeared only fleetingly and tangentially, while in the eleventh (Helgeland v. Wisconsin Municipalities), several municipalities argued that the decision in Helgeland could later have an adverse stare-decisis effect on possible litigation with their own city employees—thus a case not readily classifiable for the purposes of this post.

[2] Justice Abrahamson also invoked stare decisis in two concurrences (one authored and one joined) and a lead opinion.  In another case (State v. Luedtke) she downplayed the impact of stare decisis in a concurrence that read more like a dissent.  She rejected the contention of the majority opinion (authored by Justice Gableman) that stare decisis supported the majority’s ruling that two petitioners were not deprived of due process rights when a state laboratory destroyed their blood samples before the defendants could have these samples tested independently.  Justice Bradley, in addition to her dissents, invoked stare decisis in two concurrences (one authored and one joined).

[3] The other five references to stare decisis by Justices Ziegler, Gableman, and R.G. Bradley occurred in four majority (or lead) opinions and a concurrence.

[4] Regarding the other justices mentioned in this paragraph, Justice Wilcox served for 11 of the 12 terms in this period; Justice Butler served four terms; Justice Prosser 10 terms; and Justice Sykes five terms.  Justices Abrahamson and Bradley were on the bench for all 12 terms from 1996-97 through 2007-08.

[5] For a complete set of figures for all justices who authored or joined stare decisis opinions from 1996-97 through 2007-08, click here.

[6] She cited Johnson Controls v. Employers Insurance of Wausau, a case mined frequently for quotations both by justices invoking and those downplaying stare decisis.

[7] Justices Prosser and Wilcox joined Justice Roggensack’s dissent.  Her citation is to Justice Wilcox’s dissent in Johnson Controls.

[8] For a sampling of these sentiments, see Lawrence C. Marshall, “‘Let Congress do it’: The Case for an Absolute Rule of Statutory Stare Decisis,” Michigan Law Review, November, 1989.  The opening pages include a claim by a former assistant attorney general of the United States that “‘stare decisis has always been a doctrine of convenience, to both conservatives and liberals. Its friends, for the most part, are determined by the needs of the moment.’”

[9] See for example Justice Bradley’s dissent in State v. Denny; Justice Sykes’s lead opinion in State v. Outagamie County Board of Adjustment; Justice Prosser’s majority opinion in Johnson Controls; and Justice Abrahamson’s lead opinion in Bartholomew v. Wisconsin Patients Compensation Fund.