Stopping the Pendulum: Why Stare Decisis Should Constrain the Court from Further Modification of the Search Incident to Arrest Exception
David L. Berland   |   2011 U. Ill. L. Rev. 695
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The doctrine of constitutional stare decisis—the time-honored tradition by which the Supreme Court defers to its prior decisions and applies its precedents to new cases with similar facts—has come under attack both in the scholarly community and in the high court itself, where Justices appear to pay increasingly less deference to prior decisions in deciding new cases before the Court. This Note reaffirms the importance of constitutional stare decisis in maintaining the Supreme Court’s judicial efficacy and credibility through an examination of the Court’s inconsistent Fourth Amendment jurisprudence with regard to the “search incident to arrest exception,” most recently applied, and modified, in Arizona v. Gant.

After a reexamination of the history and rationales underlying constitutional stare decisis doctrine and a discussion of the factors for determining whether to apply prior precedents to new cases, the author discusses the convoluted history of the “search incident to arrest exception” to demonstrate the confusion resulting from a failure to adopt a consistent approach to stare decisis at the constitutional level. In order to strengthen constitutional stare decisis, the author recommends making the application of stare decisis to new Supreme Court decisions a rebuttable presumption. Further, the author recommends consistently applying the Rehnquist Court stare decisis factors of workability, reliance, changed circumstances, and developments in the law, along with the additional factors of the impact on liberty and the availability of alternatives to deviating from precedent, to determine whether to abide by a previous constitutional interpretation.