Parents often say that two wrongs don’t make a right. Statutory stare decisis — a form of stare decisis on steroids — actually invokes three wrongs under the Constitution. And piling up constitutional improprieties is hardly a way to be faithful to that document.
The first constitutional wrong is the original usurpation of legislative power by the Supreme Court. The Constitution provides only one way that a statute can be altered — through bicameralism and presentment. The Court plays no role in that. Yet by misinterpreting a statute to change it, the Court is bypassing the proper constitutional process for amending a statute, thus usurping power the Constitution does not give the Court.
The second constitutional wrong is required by the doctrine of statutory stare decisis. That doctrine looks to congressional inaction as a sign of acquiescence to the Court’s alteration of the original statutory meaning. And that is seen as a reason for keeping that otherwise erroneous interpretation. But this logic is at odds with normal nondelegation doctrine. Under that doctrine, the fact that Congress delegated legislative power to another branch does not fix the unconstitutional delegation. So too here. While the original act was one of usurpation rather than delegation, those are just the flip sides of the same unconstitutional coin. Either way, the separation of powers has been violated. Hence the same logic of nondelegation would apply to usurpation and statutory stare decisis: Congressional inaction cannot — just as action cannot — make right what was originally wrong.
The third constitutional wrong is related to the second. By upholding the erroneous interpretation, the Court is acquiescing in the original unconstitutional usurpation. But that cannot rectify the original constitutional transgression any more than congressional inaction does so. Otherwise, branches could consort to violate the separation of powers. And it is just as problematic when two branches do so as when one branch does so with its earlier self.
Perhaps the Court could learn something from that old adage about two wrongs, or from math. Just as adding three negative values does not create a positive one, so too in constitutional jurisprudence: Three wrongs don’t magically make a right. Hence, an overly muscular statutory stare decisis violates the constitutional separation of powers. Ironically, just as the Court started this mess, it has the power to fix it. That will take courage. But by providing the judiciary with lifetime tenure, the Constitution provides the very protection needed for the Court to flex such courage. Here’s hoping it will in the remaining cases this term where statutory stare decisis is at issue. The Constitution demands nothing less.