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LEGAL THEORY
ON STARE DECISIS AND JUDICIAL RESTRAINT
Lewis F. Powell Jr. (1990). ‘Stare Decisis and Judicial Restraint,’ Washington and Lee
Review, Vol. 47, No. 2, pp. 281-290.
These notes on legal theory will summarize the main points raised by Justice Lewis
F. Powell Jr. of the U.S. Supreme Court in the Leslie H. Arps lecture that he delivered
before the New York Bar Association on October 17, 1989.
The lecture was subsequently published in 1990 in the Washington and Lee Review.
Justice Powell’s goal in this lecture is to explain the relationship between the
doctrine of stare decisis and the function of ‘judicial restraint.’
As a prelude to doing so, Justice Powell analyses the Supreme Court’s performance
in the year 1988-89 with a specific focus on whether or not the Court decided cases
that overruled its precedents before moving on to what was really at stake in this
lecture – the ‘current health’ of stare decisis as a judicial doctrine.
Justice Powell’s comments on stare decisis are important because he was involved in a
number of landmark decisions of the U.S. Supreme Court after his appointment to
the bench in 1971.
An interesting technique to unpack a Justice’s judicial philosophy is to ask him to
explain his attitude or approach to precedents while deciding cases or granting cert
(i.e. to stare decisis).
When he does so, the audience is bound to get an embryonic version of how he thinks
about decision making on the bench.
That is why Justice Lewis Powell’s comments on stare decisis remain relevant even
though there is no dearth of scholarly articles and essays on this topic in law school
reviews and journals in the United States.

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Justice Powell points out that both the Warren and Burger Courts in which he served
overruled approximately sixty cases each of the thousands that came up before them for
cert and the hundreds that must have come up for a decision.
Justice Powell is less preoccupied with the precise numbers (since it depends on how
you count the relationship between a decision in the present and a precedent), but
with the fact that there was a continuity of concerns between these Courts.
The total number of cases that overturned precedents was actually quite small in
number even though the Warren Court was supposed to have been ‘activist’ in its
approach to adjudication, and the Burger Court a lot less ‘counter-revolutionary’
than it was expected to be by law school faculty and the media.
In other words, Justice Powell argues that it is not enough to consider the sheer
number of cases to decide if a given bench was activist or exercised a sense of
restraint.
It is more important to look at the scope and importance of the cases that came up
for decision, and the impact that these cases made in terms of raising public
awareness and interest in the proceedings of the Supreme Court.
What really matters, to put it directly, is whether the public at large understand why
certain precedents were overruled and why the rest were not.
Justice Powell mentions some of the important cases which overruled Supreme
Court precedents; they include Brown v Board of Education (1954), Baker v Carr (1962),
Brandenburg v Ohio (1969), Miller v California (1973), Gregg v Georgia (1976), Taylor v
Louisiana (1975), and Batson v Kentucky (1986).
Public acceptance, needless to say, is important for all Supreme Court decisions, but
that is especially the case for those that depart from precedents.
Some of these precedents like Plessy v Ferguson (1896) may themselves be well-
known to the judicial community and considered to be ‘binding.’
That is why Justice Powell argues that – contrary to what many think - the Warren
and Burger courts were actually marked by a sense of judicial restraint and not by
judicial activism.
It appears then that before explaining his interpretation of stare decisis, Justice
Powell is mainly trying to take the position that the detractors of the Supreme Court
are wrong in thinking that the Justices were departing from the doctrine of stare
decisis.
What then is Justice Powell’s justification of the doctrine of stare decisis?

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There are three important points that he invokes by way of a justification; they
include the following:
1. It is not technically possible to rethink every case as would be required in a
legal system which did not have any precedents at all; Justice Powell
therefore invokes the arguments made in favour of stare decisis by Justice
Benjamin Cardozo in his Storrs lectures as his first point.
2. Stare decisis increases the stability of the legal system. The areas that would be
directly affected by its absence include personal rights, property rights, and
commercial transactions. In the absence of these rights, the day-to-day life of
citizens and business men would be affected and increase the total amount of
litigation in at least these areas.
3. Stare decisis also increases the ‘public legitimacy’ of the judiciary; it assures the
public that the Supreme Court is not making laws or doing policy on its own,
but merely exercising the powers given to it by the Constitution.
Justice Lewis Powell is not only preoccupied with defending the record of the
Warren and Burger Courts, but is also concerned with the criticisms that have been
levelled on the doctrine of stare decisis in the context of constitutional and statutory
interpretation.
In the case of constitutional law, he is opposed to those who would argue that there
is no need for the doctrine of stare decisis at all and that Justices should respond to
significant sections of the Constitution without worrying about what the Supreme
Court had decided on previous occasions.
The danger in this approach for Justice Powell is that it reduces constitutional
interpretation to whatever the current majority decides should prevail in a given
case.
It is important for him, as a member of the bench, to imbibe what previous Courts had to
say on any given matter before deciding a case.

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In the case of statutory interpretation, the argument is that stare decisis should be
taken even more seriously than is the case now.
The argument, simply stated, is that the legislature can always undo the Supreme
Court’s decision by coming up with new legislation if the Court were to make a
mistake or misread its legislative intent.
If they haven’t done so, it means that the legislature and the judiciary are in
agreement on how cases relating to a particular statute have been interpreted by the
courts.
Justice Powell’s point however is that it may not be possible for the legislature to
keep such a close watch on what the judiciary is up to and keep ‘fine-tuning’ the
statute in response to how specific cases are decided.
So, Justice Lewis Powell would approach statutory interpretation with caution.
It must be remembered that statutes are often ‘open-ended’ and the legislature
expects the courts to fill in the details in the context of the case law that develops in
the context of a particular statute.
Justice Powell’s approach then partakes of a form of ‘modest adjudication’ that is
characterized by a sense of judicial restraint; it is attentive to ‘rules of standing’ and
does not attempt to ‘create new areas of judicial oversight.’
This amounts to saying that the Supreme Court should not get involved in
administration, but only pursue its judicial function.
This modest approach to adjudication also involves a sense of restraint in the writing
of opinions.
Justice Powell is against the proliferation of ‘splintered opinions’ since it does not
give the public the sense of cohesiveness that they seek in a judicial opinion.
It gives the impression that the judiciary does not take stare decisis as seriously as it
should.
A textual instance of this is the need to avoid expansive footnotes in opinions which
may later be cited by litigants as having precedential value; and deferring to the
extent possible with boards, experts, and committees that have the technical
knowledge to get their work done.
And, finally, Justice Powell points out – by way of a conclusion – that the doctrine of
‘stare decisis is essential to the rule of law.’

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The importance of stare decisis is to be gauged by the fact that while it is not possible
to infer the intent of the founding fathers with certainty, what Justices have in
practice to get by is the ‘constant thread’ of decisions ‘in preserving the continuity
and stability’ of the legal system.
As Justice Lewis Powell puts it, ‘in the long run, restraint in decision making and
respect for decisions once made are the keys to preservation of an independent
judiciary and public respect for the judiciary’s role as a guardian of rights.’
SHIVA KUMAR SRINIVASAN