The Limits of Weakened Stare Decisis: Cautionary Lessons from the United States for Australia

Abstract

Both the High Court of Australia and the United States Supreme Court have recently revisited the doctrine of stare decisis and its role in constitutional settings. This article examines how and when apex courts are willing to overturn their prior decisions on questions of constitutional interpretation, and whether a weakened application of stare decisis is appropriate in this context. Drawing on comparative representation-reinforcing theory, and applying it to contemporary United States constitutional experience, we identify cautionary insights for Australian constitutionalism. We argue that while a measured weakening of stare decisis in the constitutional context may be justified, such weakening goes too far when it is or is perceived to be the cause or side-effect of the politicisation of judicial decision-making.