Ilya Shapiro (CATO) & Prof. Dabling (BYU) Address Precedent at FedSoc Event

August 9, 2018

For its first event of the semester, the Federalist Society welcomed Ilya Shapiro (CATO Institute) and BYU Political Science Professor Brandon Dabling. Shapiro and Dabling discussed stare decisis and when courts should overturn precedent, specifically reviewing the Supreme Court’s decision to overturn Austin v. Michigan Chamber of Commerce in Citizens United v. Federal Election Commission.


Mr. Shapiro opened the event by discussing stare decisis more generally. Regardless of a judge’s individual judicial philosophy, stare decisis, or a respect for precedent, plays an important role. “One’s views on stare decisis do not have to map directly onto one’s jurisprudence.” For example, although Justices Scalia and Thomas were both in the judicially conservative camp, they often disagreed on questions of stare decisis. Chief Justice Roberts, likewise considered to be a judicial conservative, tends to take a unique approach to precedent, acknowledging when precedent is wrong, but trying to limit bad precedent rather than overturn it.

Though not a binding principle of law, stare decisis is supported by important rationales according to Shapiro. “Society has a strong interest in the law’s predictability and stability,” Shapiro said. When considering whether to overturn precedent, judge’s must think critically about the reliance interests at stake and whether reaching the “right” decision is worth the social costs. Courts rely on such factors as the correctness of the decision, the workability of the legal regime created by the precedent, and how antiquated and embedded the precedent is.


In Citizens United, the Court was in a good position to overturn the precedent. The Court had previously criticized Austin as an outlier in First Amendment law. The government, recognizing Austin’s shortcomings, abandoned Austin’s rationale during briefing and oral argument, pursuing alternative rules in hopes of preserving the lower court’s judgment. In short, the majority did not have a significant stare decisis hurdle to clear to overturn Austin, and in this sense, the legal landscape of Citizens United can be used as a yardstick to assess when precedent can and perhaps will be overturned.

Professor Dabling largely agreed with Mr. Shapiro’s take on precedent, noting that—perhaps Justice Thomas aside—precedent plays a significant role in every Justices’ jurisprudence. Drawing upon the writings of Justice Scalia, Professor Dabling provided students some guidelines for determining whether precedent will be overturned. The Justices often ask: 1) whether harm will be done to those relying on the prior decision, 2) how textually and historically inaccurate the precedent is, 3) whether the decision has generally been accepted by society, and (4) whether the Court behaved as policymakers in the prior decision. According to Professor Dabling, these questions help the Court honor reliance interests and preserve the morality of the Court.