Taking Stare Decisis Seriously: A Cautionary Tale for a Progressive Supreme Court

To better understand stare decisis and to normatively explore our constitutional future, this article assumes that President Obama's election signifies a constitutional shift similar to the one occurring after President Nixon won in 1968. From that contentious, self-righteous era to the present day, all American Presidents selected Supreme Court nominees who were more conservative than the members of the Warren Court majority, much less that aggressively liberal duo, Justices Brennan and Marshall. Justice Stevens, appointed by the moderate Republican President Gerald Ford, is arguably the most liberal member on the Court. It is impossible to predict how far the country may tack leftward. Nixon's initial electoral triumph was an uncertain beginning for modern conservatism that hardly satisfied his party's more militant wing: he was more liberal domestically than any President after Carter (whose own administration began the process of deregulation which eventually degenerated into catastrophic speculative frenzy). It is possible that Obama's administration will readjust existing norms or fail, suddenly reviving modern conservatism.