Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, December 15, 2012

Super-Precedent and Stare Decisis

Doug Berman at Sentencing Law & Policy Blog commented yesterday on the Supreme Court's cert grant last month in Alleyne v. United States wherein the question is "Whether this Court's decision in Harris v. United States, 536 U.S. 545 (2002), should be overruled."  Harris is a federal sentencing case in the Apprendi line of cases and is important to federal criminal law practitioners on that ground.  However, Berman notes:

[T]he notion of whether Harris "should be overruled" has me thinking Alleyne could be a sleeper case concerning the doctrine of stare decisis in constitutional law and practice.  Significantly, Harris did not create the constitutional rule that legislatures could allow sentencing judges to find facts by a preponderance of evidence to trigger the application of mandatory minimum prison terms.  Harris merely reaffirmed this constitutional doctrine in 2002; it was established back in 1986 in McMillan v. Pennsylvania (and the McMillan opinion suggested its holding was just a reaffirmation of constitutional rules first set out in the 1949 case of Williams v. New York).  In other words, Harris is not just a regular precedent: like Roe v. Wade and other controversial rulings often challenged and often reaffirmed, the constitutional doctrines allowing judges to find facts to trigger mandatory minimums arguably qualify as a "super-precedent."

Like Professor Berman, I do not consider myself a sufficiant expert on constitutional theory to say whether super-precedents exist.

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