"Super-Precedents" Are NOT About Stare Decisis

Continuing on the same stare decisis theme from my last couple of posts, I just had the following thought. There's this phrase that gets thrown around from time to time, "super-precedent." The implication of calling a certain case a super-precedent is that the burden for overruling it becomes especially, perhaps impossibly, high; the way it's discussed, it's like the principles of stare decisis apply with extra force to certain cases. I think that's wrong. Stare decisis, recall, is very explicitly about following old cases even if you think they might be wrong. It is all very well and good to say we have a system of precedent, in the sense that we reason from prior cases when we have no reason to doubt that the holdings of those cases were correct. It is a very different thing to say that precedent is actually binding solely because it is precedent, i.e. that a wrongly-decided case may rightly compel a future court to reach that same result in a later case, and that is what the doctrine of stare decisis concerns.

But, as my last post suggested, it's ridiculous to fashion some theory of "super-precedents" out of this. A super-precedent is, almost by definition, a landmark constitutional case. Those are exactly the kind of cases where the old line that, sometimes at least, it is more important that a matter be settled than that it be settled correctly is least true. Errors in constitutional jurisprudence cannot be corrected except through formal amendment or, y'know, through having the Court reverse its precedents. And the landmark cases are, of course, the biggest and most important, the ones where the impact of a wrong decision will be the greatest. To talk of these landmark constitutional cases as "super-precedents" which should not be overruled no matter how much we might be certain that they are wrong as a matter of law is ridiculous. The reason why it's important that we reaffirm Brown v. Board of Education is that it's right, not that it's a "super-precedent."

But of course, it is a super-precedent. Really it's the super-precedent, the only one pretty much everyone can agree on giving that appellation and the one to which all other nominees for the status are compared. And I think the title does have some meaning with respect to Brown, but, importantly, it is a meaning which is completely distinct from the doctrine of stare decisis. Roughly put, a super-precedent is a decision which is so clearly right and whose rightness is so important that we should consider ourselves justified in disqualifying, for just about any relevant purpose, anyone who believes that it is wrong. The super-precedential effect is not really the legal effect of a binding precedent; it is rather a cultural effect. A super-precedent is a landmark decision around which there exists such consensus that we do not need to seriously consider some new claim that it is wrong, because we know it isn't wrong. Brown is a paradigmatic example; though it was deeply controversial at the time, both in society at large and in the legal academy, it's a really simple case, and it's completely obvious that, as a matter of blackest-letter constitutional law, the outcome is correct.

That's an important concept within political culture, and one can have reasonable debate over which cases should be given that treatment, if any. But clearly no stare decisis considerations are involved in a court's decision to reaffirm such a case. In many ways it's the precise opposite phenomenon.