HOW MODERATE STARE DECISIS COULD WORK. Professor Solum gives a few examples of how judges could respect precedent without giving it preeminence over text and/or history. He offers “precedent last,” “precedent as one factor to be weighed,” and “precedent as binding in the absence of clear error.” He rejects all of these options as unsatisfactory, often because they allow for too much discretion on the part of the justices. I actually like the absence-of-clear-error one, more on that in a moment; here are four possibilities I think are, at least, better than RRSD, though none of them makes judicial flimflammery impossible.

Ways judges might discern when to follow precedent in the teeth of the text and when to reverse course:

a) The Graybeard Rule: The older the better. Recent precedents are up for grabs, but precendents that have had a long time to get really dug into our law and ordinary lives can be left alone in the interests of avoiding disruption and preserving order. (More on Solum’s passion for order later!)

b) The Sleeping Dogs Lie Rule: The Supreme Court shouldn’t seek to “settle” political issues for us little people. But sometimes it does; and sometimes it even succeeds. The SDL Rule would allow justices to reverse precedents that remain controversial, either reasserting the text or simply returning the issue to the legislative arena. Justices would continue to rely on or at least leave alone those precedents that are rarely disputed.

c) The Egregiousness Rule, which is Solum’s “absence of clear error” rule. Rulings that are textually sketch but not wilfully destructive of textual meaning are left alone, while blatant text-manipulation gets the smackdown.

d) RRSD for non-Constitutional issues (whether common-law, where you need SD a lot more, or legislation, e.g. the 1964 Civil Rights Act but not the 14th Amendment), but text-over-precedent for the Constitution.

None of these are perfect. I’m not even sure which one would be best, or if there are still better possibilities out there. To make that judgment would be to soar outside my quite limited competence even more than I’m already doing. My tentative preference would be d, c, b, a, in case you care, but I’ll be glad to get any critiques of that stance.