Constitutional stare decisis as currently practiced at the Supreme Court presents a conundrum for formalists. Following precedent is a neutral rule of decision, but it is not an inexorable command. The Justices have articulated, both individually and in opinions of the Court, various criteria by which they evaluate whether to overturn constitutional precedents. But in many ways, these criteria resemble the very same multifactor balancing standards that formalists typically disparage as indeterminate and discretion-enhancing rather than discretion- constraining.

Nevertheless, conventional wisdom holds that stare decisis meaningfully advances the core formalist proposition of adherence to legal rules without regard to the background reasons the rules are meant to serve. This conventional wisdom is mistaken. Constitutional stare decisis as currently practiced is not formalist. It does not consist of rules at all, but rather of incommensurable factors reviewed under an indeterminate analytical framework. Because of its non-formality, contemporary stare decisis does much to undermine the normative values of coordination, neutrality, and expertise that formalism seeks to advance.

Part I of this Note introduces the contours of constitutional stare decisis as practiced today at the Supreme Court. Part II conceptualizes legal formalism as utilized throughout the rest of the Note. Part III demonstrates the ways contemporary stare decisis is not formalist. Part IV explores how contemporary stare decisis undermines the formalist values of coordination, neutrality, and expertise.

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