How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis

Article excerpt

Judges are "liars." (1) They "routinely engage in delusion." (2) They occupy a paradoxical position in this world, one in which their function requires them to make law, while their legitimacy depends on the fiction that they interpret law. (3) It is a strange fiction, but it is a necessary one. The legitimacy of the judicial system requires that the rule of law be above the whims of the individual personalities who happen to occupy positions on the Supreme Court at any given time. Rather, the rule of law must be grounded in objective analysis and immutable logic, reasoning that does not change with the changing of personnel. Otherwise, there would be no reason to accept the decisions of the Court as the governing framework for our society.

Judges sustain the fiction that they interpret law, but never create it, by adhering to the doctrine of stare decisis. Stare decisis states that judicial decisionmaking should adhere to precedent. Precedent provides a source external to the judges' individual opinions that legitimizes their reasoning, supplying ready evidence that judicial decisions are based on more than individual whim. After all, there is a certain amount of security in trusting precedent. Assuming that judges in a series of decisions have conducted independent analyses to confirm their predecessors' views, and that such a series comprises a collective judgment, precedent should be more trustworthy than an individual judge's opinion. (4)

But on occasion, judges depart from precedent, (5) and when they do, the fiction of interpretation begins to fall apart. After all, when judges overrule a previous decision, they do more than disagree with that decision; they assert an individual position and reject the external substantiation of their opinion.

How, then, can judges maintain their legitimacy when they overrule? This Note attempts to provide an answer by looking at the doctrine of stare decisis through the framework of J.L. Austin's speech act theory. Specifically, this Note argues that Austin's theory allows us to view the act of ruling as a discrete performative utterance that requires certain conditions to be fulfilled before it can function properly. As an atypical application of the general act of ruling, the act of overruling requires its own set of conditions before it can achieve legal force. This Note identifies and explores those conditions.

Part I describes J.L. Austin's speech act theory and, in particular, the constative and performative aspects of speech. Part II argues that while judges enact the constative fallacy, pretending that they are interpreting rather than creating the law, they execute an explicit performative utterance every time they make a ruling. In order for the ruling to have force, however, several felicity conditions must be fulfilled, among them the legitimacy of the Court in making the ruling. In Parts III-V, I examine the ways in which the Court meets this challenge.

In conducting my analysis, I examine cases from the last three decades in which the Supreme Court has overruled an earlier constitutional case. (6) To generate this list, I use the thirty-three cases listed in the majority opinion in Payne v. Tennessee to denote constitutional decisions the Supreme Court overruled in the two decades from 1971 to 1991. (7) In addition, to span the years 1991 to 2002, I use the list of overruled cases contained in The Supreme Court Compendium (8) and the Congressional Research Service's Constitution of the United States of America: Analysis and Interpretation. (9)

This sample set includes only those cases that overrule a previous constitutional decision. The doctrine of stare decisis operates under slightly different principles when the case involves statutory construction or procedural rules. Judges and academics have viewed cases turning on statutory construction as more constrained by precedent than cases of constitutional adjudication, (10) while they have viewed cases focusing on procedural rules as less constrained. …