Stare decisis refers to a court’s decision to bind itself to its own precedent. While doing so fosters certainty and stability, it may continue a wrong.

The South Carolina Supreme Court is free to correct its earlier wrongs. In State v. Williams, 13 S.C. 546, 554-555 (1880), the Court identified four factors in deciding whether to overrule its decisions:

• is the precedent one decision or many
• did the Justices rule unanimously
• how old is the precedent
• can the Legislature overrule the decision?

The Court applied these factors earlier this year. In McLeod v. Starnes, 396 S.C. 647, 723 S.E.2d 198 (2012), the issue was whether a family court may order a non-custodial parent to pay his or her adult child’s college expenses. In 1979, the Court answered this question yes. In 2010, it concluded that its 1979 decision violated equal protection and answered no. McLeod revisited the issue, overruled the 2010 decision, and again answered yes.

Is it a single case or a body of law?

McLeod stressed that the 2010 decision was a “single precedent” case and not a body of decisions. Stare decisis, the Court held, is far more a respect for a body of decisions than a single case standing alone.

The Court has similarly held that stare decisis does not apply if the earlier decisions are in conflict. When there is a conflict, the Court generally favors the most recent decision — but is free to decide the point anew. Coleman v. Page’s Estate, 202 S.C. 486, 25 S.E.2d 559 (1943).

Did the Justices rule unanimously?

The Court in McLeod also noted that the 2010 decision drew two dissents out of the five-member court. The Court similarly gives less weight to decisions when Justices concur only in the result. See Hamrick v. Life and Cas. Ins. Co. of Tennessee, 252 S.C. 108, 165 S.E.2d 567 (1969)(declining to follow a decision rendered 2-1-2, with a Justice concurring only in the result).

How old is the decision? 

McLeod also emphasized that the 2010 case that it was overruling was only two years old, and that it was reexamining the case at the first practical moment. This factor makes sense. The stare decisis goals of certainty and stability grow more pronounced the older the precedent.

Did case construe the constitution, the common law, or a statute?

McLeod lastly emphasized that the 2010 decision was a constitutional pronouncement. The Court reasoned that stare decisis is at its weakest for constitutional questions because errors are so hard to fix. To fix the Court’s constitutional errors, the Court must overrule the case or the electorate must undergo the elaborate process of amending the constitution.

The Court similarly appears more willing to overrule its common-law decisions, reasoning that the common-law, being court-created, may be court-abrogated. McCall v. Batson, 285 S.C. 243, 255-259, 329 S.E.2d 741, 747-750 (1985)(Chandler, J., concurring),

In sharp contrast, the Court is much less willing to overrule its statutory-construction cases because the Legislature is free to fix the Court’s errors. See Wehle v. The South Carolina Retirement System, 363 S.C. 394, 403, 611 S.E.2d 240, 244 (2005)(“Legislative intent, once determined, is ‘permanently settled’ absent subsequent action by the General Assembly to effect a change in the statutory law.”); State v. One Coin-Operated Video Game Mach., 321 S.C. 176, 181, 467 S.E.2d 443, 446 (1996)(giving stare decisis effect to a single statutory-construction case that the Court rendered the year before over two dissents).

Logistics in asking the Court to overrule its precedent.

Rule 217, SCACR, governs requests to argue against precedent. Counsel is his or her brief may ask the Court to overrule a case without asking for special permission. Counsel may not, however, orally argue to overrule a case without first moving and obtaining leave of the court.

Has anyone convinced the Supreme Court to overrule a decision? Please leave a reply or reach me at www.attorneyroberthill.com.