Stare Decisis and Gerrymandering

As debate swirls around the Wisconsin Supreme Court’s decision to review maps of election districts, the issue of stare decisis has attracted attention.  A Latin term usually translated as “to stand by things decided,” stare decisis means that courts should respect the precedent set by previous rulings in similar cases.  Regarding the present case, Rebecca Clarke v. Wisconsin Elections Commission, Assembly Speaker Robin Vos and others who endorse the existing maps—approved by the Supreme Court in 2022—argue that revisiting the issue now would offend stare decisis.  “I’m not a lawyer,” Vos declared, “but the most important thing in our legal system is the ability to have stare decisis where when a court makes a decision, every time a new person enters the court, you don’t upset everything just because you have new people on the court.”[1]

The Problem
Essentially everyone agrees that the justice system cannot function properly without honoring precedent.  If previous decisions carried no weight, and judges felt free to rule as they pleased, we would have something closer to anarchy than rule of law.  However, essentially everyone also agrees that particular decisions can be wrong and may be overturned when one or more of these factors apply:  “(1) the law has changed in a way that undermines the prior decision’s rationale; (2) there is a need to make a decision correspond to newly ascertained facts; (3) our precedent has become detrimental to coherence and consistency in the law; (4) the decision is unsound in principle; or (5) it is unworkable in practice.”[2]

The breadth of these exceptions renders stare decisis a slippery (or flexible) tenet to employ in practice.  As the Dobbs decision overruling Roe v. Wade demonstrated, opinions can vary passionately as to whether respect for a previous decision is imperative for a stable and predictable legal system—or amounts to misguided acceptance of a deeply flawed ruling.  If concluding that an earlier decision is, say, “unsound in principle” suffices to overcome stare decisis, little wonder that consistent application of the doctrine has proved an elusive goal.

The Past
Several years ago, in the Spring of 2017, a post on stare decisis observed that the justices embraced—or shunned—stare decisis in a manner that rarely hindered them from taking positions they would likely have chosen in any event.

More specifically, following the replacement of Justice Butler by Justice Gableman in 2008, the court set off on a conservative course, overturning or diluting a number of previous decisions.  Thereafter, down to the end of the period considered by the post (2015-16), the court’s liberal minority (Justices Abrahamson and AW Bradley) were far more apt than their conservative colleagues to insist that stare decisis required adherence to precedent, while the conservative majority tended either to avoid discussion of stare decisis or assert that an exception pertained in the case at hand.  Conversely, before Justice Gableman’s election and the commencement of the conservatives’ ascendance, the post found the opposite to be the norm: “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.”[3]

It’s worth pausing to submit that these alternating positions need not be entirely devoid of principle—perhaps cynicism tempered by indulgence would be a fairer reaction.  As attorney Joseph Diedrich put it: “Like many things in the law, stare decisis is probably best thought of as a mix of principled philosophy and post hoc rationalization.”[4]  Indeed, all of us are doubtless predisposed to favor, if only subconsciously, arguments that bolster a conclusion congruent with our general outlook.  And if this seems self-evident, let me add that the 2017 post noted a few instances where stare decisis helped persuade justices to rule contrary to their personal preferences.

Avid Recent Practitioners
Turning now to the supreme court’s last six terms (2017-18 through 2022-23), let’s see what catches the eye in a set of 35 decisions that include the term “stare decisis.”[5]  First of all, among the 10 justices on the court during this period, two were much more inclined than the others to mention stare decisis.  Specifically, in the 35 decisions under consideration, “stare decisis” appears in 13 opinions authored by Justice Rebecca Bradley and in 10 opinions by Justice Ann Walsh Bradley—a joint output of 23 opinions that surpasses the combined total written by all of the other eight justices.[6]  And, if we filter these opinions to leave only those with extended discussion of stare decisis, Justice RG Bradley’s prominence is even more striking.  Not to put too fine a point on it, no other justice approached her rate of blunt pronouncements on the doctrine.

Just as significant, the two namesakes interpreted stare decisis in markedly different fashion.  Justice AW Bradley hailed stare decision in nine of her ten opinions, while Justice RG Bradley diminished it in all but one of hers.  Here is a sample.

Justice Ann Walsh Bradley
In 2018, dissenting in Mayo v. Wisconsin Injured Patients & Families Compensation Fund, she complained: “… I observe that the majority’s analysis and its overruling of Ferdon depart from the time-honored principle of stare decisis.  We decided Ferdon only thirteen years ago. [R]espect for prior decisions is fundamental to the rule of law.  Stare decisis is the preferred course of judicial action because it promotes evenhanded, predictable, and consistent development of legal principles . . . and contributes to the actual and perceived integrity of the judicial process.  The decision to overturn a prior case must not be undertaken merely because the composition of the court has changed.”[7]

The next year, writing for the majority in Pinter v. Village of Stetsonville, she declined an invitation to reject an earlier decision: “Decades of jurisprudence cannot, and should not, be discarded casually. This court follows the doctrine of stare decisis scrupulously because of our abiding respect for the rule of law. The doctrine of stare decisis is vital to the evenhanded, predictable, and consistent development of legal principles. It fosters reliance on judicial decisions and contributes to the actual and perceived integrity of the judicial process.”[8]

Justice Rebecca Bradley
Concurring in Town of Wilson v. City of Sheboygan, Justice Bradley enlisted US Supreme Court Justices Antonin Scalia and Clarence Thomas among other authorities to support these assertions: “While adhering to precedent is an important doctrine for lending stability to the law, not every decision deserves stare decisis effect.  After all, the purpose of stare decisis is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability.”  And: “[C]ourts of last resort are duty-bound to correct the prior court’s error.  [W]e should not invoke stare decisis to uphold precedents that are demonstrably erroneous.  As the court recently recognized, [w]e do more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision.”[9]

Two months later, dissenting in Winnebago County. v. C.S., she repeated some of these arguments, this time citing US Supreme Court Justice William Rehnquist along with Justices Scalia and Thomas: “[T]he purpose of stare decisis is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability. … But stare decisis is only an ‘adjunct’ of our duty as judges to decide by our best lights what the Constitution means.  It is not an inexorable command.”[10]

Politicized Cases
Few will be surprised to discover that in politicized or ideological cases, liberals and conservatives alike are particularly averse to construing stare decisis in a manner that would steer them to positions at variance with their own preferences.  As illustrations of such cases, we’ll offer a pair involving, first, Justice Ann Walsh Bradley.  In 2017 a conservative law firm, the Wisconsin Institute for Law and Liberty, filed an original action asking that the Superintendent of Public Instruction (Tony Evers) and the Department of Public Instruction be ordered to obtain written approval from the governor (Scott Walker) before drafting or promulgating administrative rules.  The court’s conservative majority agreed in Koschkee v. Taylor, overruling its 2016 decision in Coyne v. Walker, which moved Justice Bradley to muster stare decisis in dissent.[11]

Although nothing in our Constitution has changed since Coyne was decided, what has changed is the membership of the court.  This time around, a new majority of this court does an about-face and now concludes that the substance of Act 57 is constitutional.  To reach this conclusion, it throws the doctrine of stare decisis out the window.
[…]
Fidelity to precedent ensures that existing law will not be abandoned lightly. When existing law is open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results.
No change in the law is justified by a change in the membership of the court ….  Adherence to precedent fosters confidence in the reliability of court decisions, promotes consistent development of legal principles, and contributes to the actual and perceived integrity of the Wisconsin judiciary.
Throwing caution to the wind, the majority disregards the principles that fundamentally underlie our legal system.  It contends that Coyne was “objectively wrong.” …
Apparently, “objectively wrong” is defined by the majority as what it subjectively thinks is wrong.  The majority provides no explanation for the assertion that Coyne was “objectively wrong” other than that it disagrees with it.

After Justice Karofsky replaced Justice Kelly, the conservatives’ weakening grip was reflected in a number of decisions, including St. Augustine School v. Taylor.  Here, the majority opinion effectively limited the availability of public funding for religious schools to transport students to their facilities.  The decision relied on some of the court’s previous holdings—especially State ex rel. Vanko v. Kahl—which prompted Justice Rebecca Bradley to reprise a variety of her arguments in a prolonged challenge to the authority of precedent.[12]

The principle of stare decisis does not compel us to adhere to erroneous precedent or refuse to correct our own mistakes.  Regardless of the particular interests of the parties in perpetuating Vanko’s improper reworking of the statute, our duty to the Constitution is primary.  We do more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision.
[…]
While adhering to precedent is an important doctrine for lending stability to the law, not every decision deserves stare decisis effect.  After all, the purpose of stare decisis is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability.  As the state’s highest court, we are not constrained to follow precedent that is unworkable or badly reasoned, because stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decisions.
[…]
Stare decisis is neither a straightjacket nor an immutable rule.

In her conclusion, Justice Bradley summoned Justice Thomas to drive the point home: “The true irony of our modern stare decisis doctrine lies in the fact that proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defensible.”

Few cases could be more political than the debate over Wisconsin’s gerrymandered election maps underway in Clarke v. Wisconsin Elections Commission.  The justices will have to decide, among other things, if stare decisis renders the maps immune to the petitioners’ challenge less than two years after the court approved the maps in Billie Johnson v. Wisconsin Elections Commission.  We have found little in the court’s modern history to discourage one from supposing that in a case such as Clarke, despite the statements quoted above, Justice RG Bradley will join Justices Ziegler, and (probably) Hagedorn in consenting that stare decisis poses a serious problem for the petitioners—while Justices AW Bradley, Dallet, Karofsky, and Protasiewicz will surely deem stare decisis a good deal less than an “immutable rule.”

What is to Be Done?
A thoughtful and stimulating article by attorneys Daniel Suhr and Kevin LeRoy has summarized several reasons why the principle of stare decisis is vital to a healthy legal system—while noting that under certain circumstances (including the five listed above) stare decisis must nevertheless give way.  Consequently, they observe, “the current stare decisis doctrine, comprising factors upon factors, nuanced by various additional considerations, inevitably results in near-limitless, individualized judicial discretion.”[13]  The ensuing inconsistent application of the doctrine, they conclude, though not an indictment of judges’ integrity, is unfortunate, a flaw of the doctrine itself.

Short of an impossible comprehensive solution, attorneys Suhr and LeRoy offer two suggestions for reducing the unpredictability of stare decisis in some instances.  First, in states where judges are elected (rather than appointed), they submit that when a court’s balance is changed in a “watershed election” that reveals public opinion, the new court should take account of “the people’s judgment” when deciding how much deference to grant precedent established by pre-watershed decisions.[14]

They stress that public opinion manifested in a “watershed election” does not automatically justify overturning a decision of the pre-election court.  If the new majority, adhering to their judicial oath, believes that, notwithstanding public opinion, a prior decision was correct, they must accept it.  They are not free to cynically set aside their own views and cater to the electorate.  But, if they are sincere in their belief that a previous decision was faulty and contrary to the weight of public opinion displayed in the election, they need not bow to stare decisis.

Thus, with that understood, if a “watershed election” changes the orientation of the court, and a new justice takes the bench after a majority of voters approved her views, attorneys Suhr and LeRoy recommend that stare decisis not block her (or other justices) from voting to overturn decisions of the “pre-watershed” court.  “When the voters forthrightly choose to reject an incumbent justice based on his philosophy, we find it entirely reasonable to vacate the precedential value of the decisions that stemmed from that philosophy.”[15]

The authors also advise that stare decisis be sidelined when the court considers the constitutionality of a proposition for the first time, even if earlier decisions had addressed the issue on other grounds.  In other words, they explain, if the court has never decided whether something is compatible with a constitutional provision—in particular, its original meaning—the matter becomes one of “first impression” regardless of prior rulings.  There would be no precedent for the court to follow, and stare decisis would be irrelevant.[16]  Justice Kelly’s lead/majority opinion in Tetra Tech EC, Inc. v. Wisconsin Department of Revenue (2018) made just such a claim, dispensing briskly with stare decisis as immaterial to a “first impression” outcome.

Although both of these recommendations for diminishing the sway of stare decisis may fuel discussion this term, the first pertains most explicitly to a question before us today.  Should a candidate whose campaign made her general views clear—and who then proceeded to win a landslide victory that altered the balance of the court—feel herself released to any extent (along with her colleagues in the majority) from the bonds of stare decisis when reassessing “decisions that stemmed from [the] philosophy” of her defeated opponent?  Or, should the new majority discount “the people’s judgment,” yielding instead to the admonition in Johnson Controls, Inc. v. Employers Insurance of Wausau that the law must not change “merely because the composition of the court has changed”?  Alternatively, the new majority might skirt these questions and cast their ruling in some fashion that avoids a stare decisis debate altogether, not unlike Justice Kelly’s effort in Tetra Tech.

Conclusion
Once the court rules in Clarke, the new liberal majority may well revisit other decisions filed recently by their conservative counterparts—and, in the process, rebuff calls to abide by stare decisis.  If past practice holds, they will do so either by ignoring such entreaties or by citing one or another of the familiar “limitations” to stare decisis previously quoted most often by Justice RG Bradley.

However, in anticipation of these disputes, court watchers may wonder if new twists will emerge in the rationale for constraining stare decisis.  Perhaps a variant of the “watershed election” reasoning or some other unconventional approach will be discernible in the court’s opinions—much as “first impression” analysis beckoned in Tetra Tech.  For that matter, we may even discover that Clarke contains a novel invocation of stare decisis that most commentators had not foreseen.  In any event, if justices have been privately toying with inventive conceptions of the doctrine—either restrictive or expansive—they will likely encounter opportunities to test them over the next two terms.

[1] Quoted in “Vos says impeaching Justice Protasiewicz is not off the table,” by Raymond Neupert, Wisconsin Radio Network, October 13, 2023.
Several of the Response Briefs filed by contending parties in Clarke on October 30 debate the applicability of stare decisis.  This page contains links to the October 30 briefs (and other filings in the case).

[2] State v. Alan Johnson (internal quotations and citations omitted).

[3] In short, the arrival of a new justice can alter the court’s application of stare decisis.  Although such changes do not harmonize with stare decisis, they have occurred now and then in recent decades.  For example, attorney Joseph Diedrich observed in 2018 that “[i]n theory, a mere change in court membership does not support departing from stare decisis—but in practice it probably has that effect. Two of the newest justices (Grassl Bradley and Kelly) have shown openness to overruling precedent.”  Joseph S. Diedrich, “The State of Stare Decisis in Wisconsin,” Wisconsin Lawyer, vol. 96, no. 9 (November 2018), internal footnote removed.

[4] Diedrich, “State of Stare Decisis.”

[5] In some of the 35 cases, “stare decisis” appears fleetingly—only once or twice, or only in a single footnote.  In the discussion that follows, we will focus primarily on a subset of these cases that include sustained discussions of the doctrine.

[6] Justices’ totals do not include opinions that they joined as opposed to authored.  The ten justices are: AW Bradley, Roggensack, Ziegler, RG Bradley, Dallet, Hagedorn, Karofsky, Kelly, Abrahamson, and Gableman.  Of course, some did not serve for all six terms.

[7] Internal quotation marks and citations are omitted.  The case centered on the question of the constitutionality of the legislature’s cap on noneconomic damages for victims of medical malpractice.

[8] Internal quotation marks and citations are omitted.  The case arose when Pinter sued the Village of Stetsonville after wastewater backed up in his basement.

[9] Internal quotation marks and citations are omitted.  The case stemmed from a petition by the Kohler Company to annex some land it owned in the Town of Wilson with the goal of developing the property into a golf course.

[10] Internal quotation marks and citations are omitted.  The case involved a challenge to an involuntary-medication order.

[11] Internal quotation marks and citations are omitted.  Ironically, the court’s decision was not actually filed until June 25, 2019, several months after Tony Evers had defeated Scott Walker in the 2018 gubernatorial election.

[12] Internal quotation marks and citations are omitted.

[13] Daniel R. Suhr and Kevin LeRoy, “The Past and the Present: Stare Decisis in Wisconsin Law,” Marquette Law Review, vol. 102, no. 3 (Spring 2019), 855.  “[I]ronically, the stare decisis doctrine’s primary goal is to protect the rule of law, yet, because every judge enjoys such great latitude in applying it, the doctrine results in the rule of men.  Its aim is to promote stability, predictability, and reliance, yet it is itself unpredictable.”  Suhr and LeRoy, “The Past and the Present,” 857 (internal footnote removed).

[14] Suhr and LeRoy, “The Past and the Present,” 860.

[15] Suhr and LeRoy, “The Past and the Present,” 868.  The authors emphasize, as noted above, that if justices believe that an “unpopular pre-watershed decision is nevertheless legally correct, it must be affirmed.”

[16] Suhr and LeRoy, “The Past and the Present,” 868-72.

About Alan Ball

Alan Ball is a Professor of History at Marquette University in Milwaukee, WI.

alan.ball@marquette.edu

SCOWstats offers numerical analysis of the voting by Wisconsin Supreme Court justices on diverse issues over the past 90 years.

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