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'''Stare decisis''' means adherence by courts in current legal cases to principles established by prior court decisions.  Literally, it is Latin for "to stand by that which was decided."  It is justified by preserving reasonable expectations of the legal system, and by maintaining consistency.

'''Stare decisis''' means adherence by courts in current legal cases to principles established by prior court decisions.  Literally, it is Latin for "to stand by that which was decided."  It is justified by preserving reasonable expectations of the legal system, and by maintaining consistency.

When a prior decision was a mistake, it is controversial what role stare decisis should play in perpetuating that mistake.  In particular, stare decisis is emerging as the primary [[liberal]] argument for perpetuating ''[[Roe v. Wade]]'' (1973), the decision that established [[abortion]] on demand in the [[United States]].

When a prior decision was a mistake, it is controversial what role stare decisis should play in perpetuating that mistake.  In particular, stare decisis is emerging as the primary [[liberal]] argument for perpetuating ''[[Roe v. Wade]]'' (1973), the decision that established [[abortion]] on demand in the [[United States]].

:Though it is still my view that Apprendi v. New Jersey, <ref>530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)</ref>, was wrongly decided, Apprendi is now the law, and its holding must be implemented in a principled way. As the Court suggests, no principled reading of Apprendi would allow Walton v. Arizona,<ref> 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990),</ref> to stand. It is beyond question that during the penalty phase of a first-degree murder prosecution in Arizona, the finding of an aggravating circumstance exposes "the defendant to a greater punishment than that authorized by the jury's guilty verdict." Apprendi, supra, at 494. When a finding has this effect, Apprendi makes clear, it cannot be reserved for the judge.

:Though it is still my view that Apprendi v. New Jersey, <ref>530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)</ref>, was wrongly decided, Apprendi is now the law, and its holding must be implemented in a principled way. As the Court suggests, no principled reading of Apprendi would allow Walton v. Arizona,<ref> 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047 (1990),</ref> to stand. It is beyond question that during the penalty phase of a first-degree murder prosecution in Arizona, the finding of an aggravating circumstance exposes "the defendant to a greater punishment than that authorized by the jury's guilty verdict." Apprendi, supra, at 494. When a finding has this effect, Apprendi makes clear, it cannot be reserved for the judge.

In the ''Payne v. Tennessee'' (1991) decision cited above, Justice [[John Paul Stevens]] declared in dissent that the disregard of [[stare decisis]] put the following (presumably 5-4) decisions at risk for being overruled in the future:

In the ''Payne v. Tennessee'' (1991) decision cited above, Justice [[John Paul Stevens]] declared in dissent that the disregard of [[stare decisis]] put [many] (presumably those found 5-4) decisions at risk for being overruled in the future. <ref>:See, e. g., Metro Broadcasting v. FCC, 497 U.S. 547, 111 L. Ed. 2d 445, 110 S. Ct. 2997 (1990) (authority of Federal government to set aside broadcast licenses for minority applicants); Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990) (right under Double Jeopardy Clause not to be subjected twice to prosecution for same criminal conduct); Mills v. Maryland, supra (Eighth Amendment right to jury instructions that do not preclude consideration of nonunanimous mitigating factors in capital sentencing); United States v. Paradise, 480 U.S. 149, 94 L. Ed. 2d 203, 107 S. Ct. 1053 (1987) (right to promotions as remedy for racial discrimination in government hiring); Ford v. Wainwright, 477 U.S. 399, 91 L. Ed. 2d 335, 106 S. Ct. 2595 (1986) (Eighth Amendment right not to be executed if insane); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 90 L. Ed. 2d 779, 106 S. Ct. 2169 (1986) (reaffirming  [*852]  right to abortion recognized in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973)); Aguilar v. Felton, 473 U.S. 402, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985) (Establishment Clause bar on governmental financial assistance to parochial schools).</ref>

 

:See, e. g., Metro Broadcasting v. FCC, 497 U.S. 547, 111 L. Ed. 2d 445, 110 S. Ct. 2997 (1990) (authority of Federal government to set aside broadcast licenses for minority applicants); Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990) (right under Double Jeopardy Clause not to be subjected twice to prosecution for same criminal conduct); Mills v. Maryland, supra (Eighth Amendment right to jury instructions that do not preclude consideration of nonunanimous mitigating factors in capital sentencing); United States v. Paradise, 480 U.S. 149, 94 L. Ed. 2d 203, 107 S. Ct. 1053 (1987) (right to promotions as remedy for racial discrimination in government hiring); Ford v. Wainwright, 477 U.S. 399, 91 L. Ed. 2d 335, 106 S. Ct. 2595 (1986) (Eighth Amendment right not to be executed if insane); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 90 L. Ed. 2d 779, 106 S. Ct. 2169 (1986) (reaffirming  [*852]  right to abortion recognized in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973)); Aguilar v. Felton, 473 U.S. 402, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985) (Establishment Clause bar on governmental financial assistance to parochial schools).

:Based on the majority's new criteria for overruling, these decisions, too, must be included on the "endangered precedents" list: Rutan v. Republican Party of Illinois, 497 U.S. 62, 111 L. Ed. 2d 52, 110 S. Ct. 2729 (1990) (First Amendment right not to be denied public employment on the basis of party affiliation); Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U.S. 91, 110 L. Ed. 2d 83, 110 S. Ct. 2281 (1990) (First Amendment right to advertise legal specialization); Zinermon v. Burch, 494 U.S. 113, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990) (due process right to procedural safeguards aimed at assuring voluntariness of decision to commit oneself to mental hospital); James v. Illinois, 493 U.S. 307, 107 L. Ed. 2d 676, 110 S. Ct. 648 (1990) (Fourth Amendment right to exclusion of illegally obtained evidence introduced for impeachment of defense witness); Rankin v. McPherson, 483 U.S. 378, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987) (First Amendment right of public employee to express views on matter of public importance); Rock v. Arkansas, 483 U.S. 44, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987) (Fifth Amendment and Sixth Amendment right of criminal defendant to provide hypnotically refreshed testimony on his own behalf); Gray v. Mississippi, 481 U.S. 648, 95 L. Ed. 2d 622, 107 S. Ct. 2045 (1987) (rejecting applicability of harmless error analysis to Eighth Amendment right not to be sentenced to death by "death qualified" jury); Maine v. Moulton, 474 U.S. 159, 88 L. Ed. 2d 481, 106 S. Ct. 477 (1985) (Sixth Amendment right to counsel violated by introduction of statements made to government informant-codefendant in course of preparing defense strategy); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985) (rejecting theory that Tenth Amendment provides immunity to States from federal regulation); Pulliam v. Allen, 466 U.S. 522, 80 L. Ed. 2d 565, 104 S. Ct. 1970 (1984) (right to obtain injunctive relief from constitutional violations committed by judicial officials).

:Based on the majority's new criteria for overruling, these decisions, too, must be included on the "endangered precedents" list...(The list has over 15 important rulings)<ref>: Rutan v. Republican Party of Illinois, 497 U.S. 62, 111 L. Ed. 2d 52, 110 S. Ct. 2729 (1990) (First Amendment right not to be denied public employment on the basis of party affiliation)</ref>; Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U.S. 91, 110 L. Ed. 2d 83, 110 S. Ct. 2281 (1990) (First Amendment right to advertise legal specialization); Zinermon v. Burch, 494 U.S. 113, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990) (due process right to procedural safeguards aimed at assuring voluntariness of decision to commit oneself to mental hospital); James v. Illinois, 493 U.S. 307, 107 L. Ed. 2d 676, 110 S. Ct. 648 (1990) (Fourth Amendment right to exclusion of illegally obtained evidence introduced for impeachment of defense witness); Rankin v. McPherson, 483 U.S. 378, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987) (First Amendment right of public employee to express views on matter of public importance); Rock v. Arkansas, 483 U.S. 44, 97 L. Ed. 2d 37, 107 S. Ct. 2704 (1987) (Fifth Amendment and Sixth Amendment right of criminal defendant to provide hypnotically refreshed testimony on his own behalf); Gray v. Mississippi, 481 U.S. 648, 95 L. Ed. 2d 622, 107 S. Ct. 2045 (1987) (rejecting applicability of harmless error analysis to Eighth Amendment right not to be sentenced to death by "death qualified" jury); Maine v. Moulton, 474 U.S. 159, 88 L. Ed. 2d 481, 106 S. Ct. 477 (1985) (Sixth Amendment right to counsel violated by introduction of statements made to government informant-codefendant in course of preparing defense strategy); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985) (rejecting theory that Tenth Amendment provides immunity to States from federal regulation); Pulliam v. Allen, 466 U.S. 522, 80 L. Ed. 2d 565, 104 S. Ct. 1970 (1984) (right to obtain injunctive relief from constitutional violations committed by judicial officials).</ref>

== References ==

== References ==