Stare Decisis and the Filibuster

I’m in idea-testing mode, as I’ve been invited to a Symposium at Notre Dame on “The American Congress:  Legal Implications of Gridlock.”  My first thought was that this was asking panelists to identify solutions for gridlock.  My second thought was that this conference is about the collateral consequences of gridlock.  Pursuing that line of inquiry, I wonder if the “super-strong” presumption of statutory stare decisis should be abandoned for Acts of Congress.

A leading source of gridlock in Congress is the current practice of the filibuster.  Now I’ve written about how that practice is contrary to the Senate’s traditions and should be reformed, but let’s say nothing changes.  In effect, that means that we have a supermajority rule for most legislation.

Courts interpreting statutes, though, do not acknowledge this fact.  They assume that Congress is a majoritarian body.  The most important conclusion that follows from this faulty premise is that stare decisis should be particularly strong with respect to interpretations of federal statutes.  Why?  Well, because Congress can correct an incorrect construction fairly easily.  That point does gloss over the inertia that exists in a majority-rule legislature (committees, party leaders, the executive veto), but I gather that the idea is that this inertia is insufficient to alter the sanctity of statutory precedent. But why should these precedents be treated so respectfully when it takes sixty votes in the Senate to “fix” erroneous decisions?  Granted, this is less difficult than correcting a faulty constitutional opinion, but that does not translate into a “super-strong” rule of stare decisis for federal statutes.

I’ll have more to say about the relationship between the filibuster and interpretation tomorrow.

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2 Responses

  1. Orin Kerr says:

    Interesting argument. Question, though: is the rationale for strong stare decisis in statutory interpretation cases that Congress can fix incorrect interpretations “easily”, or just that it can? If the latter, then it’s not really different if the Senate effectively has a supermajority rule. Also, would you have the stare decisis rule change depending on the era in which that law was passed, or the ease in which similar statutes have been amended? For example, it’s much easier to get a law passed expanding a criminal law than narrowing it, or making it more punitive rather than less. If you begin to take these issues into account, then you run into a lot of headaches trying to classify the ease at which Congress is likely to correct interpretations.

  2. Gerard Magliocca says:

    Two thoughts. First, stare decisis is relaxed for constitutional precedents because getting an Article Five amendment to fix an error is hard. It’s not impossible though. Thus, the issue is whether current filibuster practice increases legislative inertia to the point that stare decisis should go from “super-strong” to “something less than that.”

    Second, I think that we’d be better off saying that stare decisis (and when to deviate from that principle) is a complex judgment that involves many factors. Treating statutory precedents as categorically different is too blunt.