Parting thoughts on precedent

|The Volokh Conspiracy |

I'm so grateful to Eugene and the other VC bloggers for allowing me to talk about precedent this week. I want to close by introducing two more issues that are relevant to the Supreme Court's treatment of its past decisions.

So far I've been focusing on the strength of precedent—that is, what it takes to overrule a prior decision. Before the Supreme Court thinks about whether to overrule, it has to figure out whether a decision actually applies to the case before it. Sometimes the answer is clear, but often it's not. It depends on how the prior decision is understood and applied. In other words, it depends on the decision's scope of application to future cases.

How the Supreme Court characterizes the scope of its decisions is every bit as important as the presumption against overruling. Even if the presumption against overruling is extremely strong, it doesn't mean much if future courts can construe prior decisions any way they like. Something I emphasize throughout my book, "Settled Versus Right," is that the strength of prior decisions and the scope of those decisions always need to be considered together.

The question of scope is as complicated as it is important, and while I can't address it in depth here, there's one point I want to emphasize. I've suggested that the strength of precedent can vary depending on how different justices think about the Constitution. The factors that lead a justice to view a decision as wrong can also lead him to believe the decision needs to be overruled. That's a perfectly natural and reasonable tendency, but I've argued that the Supreme Court generally should resist it. The goal is to use respect for the past to overcome disagreements among justices.

The same goes for defining the scope of prior decisions. Some justices will be inclined to define past decisions narrowly—that is, as not applying to very many future cases—based on how they think about the Constitution and the role of the Supreme Court. Other justices will define past decisions more broadly based on their own understandings of the constitutional blueprint. If we want a shared, consistent approach to how past decisions are defined, those sorts of disagreements present a real challenge.

Responding to that challenge requires a set of rules that the justices can apply regardless of their individual approaches to the Constitution. Those rules should answer questions such as whether to defer to a court's explanation of its reasoning in addition to its statement of the governing legal principle, whether to defer to general frameworks that sweep beyond the decisions that contain them, and so on.

The Supreme Court's existing practices already provide a lot to work with in developing the rules of scope. Where uncertainty remains, I suggest a middle ground: an approach of shared sacrifice that gives something to—and asks something of—justices with varying views of the Constitution and the Supreme Court's role. Above all, it's crucial that the rules of scope be announced in advance and applied consistently. Without clear and consistent guidance, there's too great a risk that prior decisions will be characterized in different ways from case to case, and from justice to justice.

That brings me to my final point. I've suggested that the Supreme Court ought to defer to its prior decisions even when it concludes that they're wrong. I recognize that I have a heavy burden in arguing that the court should get it wrong on purpose. And if I (and others who support a relatively strong doctrine of precedent) make that showing, I still have some work to do, because it's impossible to know what the future will hold. Even if a justice believes that deferring to prior decisions is a good idea, there's no guarantee that his peers and successors will reach the same conclusion. Why should he tolerate others' mistakes if his colleagues (present and future) might not follow suit?

This is another complicated issue, but here's the short version of my answer: No matter what happens tomorrow, a justice's willingness to uphold a decision that he views as flawed promotes the idea that the Constitution maintains its shape even as justices come and go. Sure, the effect would be greater if all nine of today's justices, along with every future justice, did the same. But even a single justice can make a contribution. And over time, by helping to establish deference to prior decisions as a common practice, a justice can increase the likelihood that his colleagues will follow his lead.

Of course, deferring to precedent might work in a justice's favor if it ends up saving some decisions that he thinks are right but that a majority of his colleagues or successors think are wrong. It's also important to consider what the alternative is. A justice who opts to disregard the Supreme Court's past decisions might succeed in achieving what he views as the correct result in a given case. But if his successors share his feelings about precedent, that result will stick around only as long as five justices agree with him. If a justice really wants his votes to matter over the long term, his best move might be to help establish an institutional practice of deferring to past decisions.

Most importantly, a justice's respect for precedent reflects an understanding of the Constitution as enduring, and of the Supreme Court as more than the individuals who comprise it. There's room for change, as I've explained all week. But there's also a commitment to stability. That's how I read the justices' frequent descriptions of deference to the past as important to the rule of law.

There's plenty more I could say about precedent, and there's a wealth of great work that top-notch scholars (many of whom disagree with me in lots of respects) have done and are continuing to do. And Supreme Court justices are constantly giving us more insight into their thoughts about past decisions, both during their confirmation hearings—which invariably involve questions about precedent—and in their written opinions.

It will be fascinating to see what the future holds for the Supreme Court's treatment of its past. For now, I'll sign off with another expression of gratitude to Eugene and the other VC bloggers, and to everyone who read my posts.