Schumer and Stare Decisis

by Jonathan H. Adler

Senator Schumer’s comparison of the role of stare decisis on the Supreme Court with that on the Third Circuit is inapt. While it seems that an appellate court should treat its own precedent the way that the Supreme Court treats its Supreme Court precedent – as Schumer suggested and Alito accepted – I think that the parallel breaks down. An intermediate appellate court, unlike the Supreme Court, must alter its own precedent to conform with relevant Supreme Court precedent, even when not directly controlling (that is, intervening Supreme Court precedent may counsel altering appellate court precedent even where it does not directly overrule such precedent). Moreover, intermediate appellate courts should be more open to persuasive authority from other courts than the Supreme Court, as the Supreme Court has no “sister” courts to which it can look. As for Alito, I do not think that Senator Schumer accurately characterizes Judge Alito’s record, and that his opinions have tended to conform more closely with applicable precedent than have those of many of his colleagues.