Stare Decisis and the Identity-Over-Time Problem: A Comment on the Majority's Wrongness in Kisor v. Wilkie
In Kisor v. Wilkie, the Supreme Court recently confronted whether to overrule the doctrine under which courts defer to agencies’ interpretations of their own ambiguous regulations—so-called Auer or Seminole Rock deference. In its prior reexaminations of Seminole Rock, the Court had progressively restricted the doctrine’s scope, leading observers to wonder whether the Justices would scrap it for good. This question of administrative law ignited a corollary debate about stare decisis. Writing for the majority, Justice Kagan argued that stare decisis mandated the preservation of Seminole Rock. Yet as she appealed to stare decisis, her opinion further restricted the conditions under which deference applies. Concurring in the judgment, Justice Gorsuch contended that the majority was wrong to invoke stare decisis while simultaneously modifying the doctrine in basic respects. Preservation of precedent, in his view, was inconsistent with its continued modification. Embedded in Justice Gorsuch’s opinion was a deep question about identity over time: If a precedent is heavily modified through subsequent case law, may the final case “reaffirming” and further modifying the precedent justifiably trace its lineage to the original case announcing the principle, such that the principle’s supposed “antiquity” lends it enhanced stare decisis weight? This Article, extending Justice Gorsuch’s critique, answers in the negative. Continuous and profound modification of a precedent casts doubt on the quality of the Court’s original reasoning and erodes the connection between earlier and later cases, thus weakening the stare decisis weight due the precedent upon its reconsideration.
Stare Decisis and the Identity-Over-Time Problem: A Comment on the Majority's Wrongness in Kisor v. Wilkie,
SMU L. Rev. F.