The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Kavanaugh Testimony, Part 4: On following precedents

And why write dissenting and concurring opinions?


In previous posts here, here, and here, I presented excerpts from Judge Brett Kavanaugh's testimony before the Senate Judiciary Committee on a variety of topics. In this post, I present a portion of what he had to say about following precedents, also called the doctrine of stare decisis. The highlight of this testimony was a challenge to Judge Kavanaugh's invocation of stare decisis by Senator Ben Sasse, who also asked him about the function of dissenting and concurring opinions.

Day 2, Part I (11:50):

Precedent is not just a judicial policy. Precedent comes right from Article III of the Constitution. Article III refers to the "judicial power." What does that mean? Precedent is rooted right into the Constitution itself.

Day 2, Part I (29:22):

The role of precedent is to insure stability in the law, which is critically important. It's also to ensure predictability of the law. People who order their affairs around judicial decisions need to know that the law is predictable whether you're an individual or business or worker […] People rely on the decisions of the courts, so reliance interests are critically important to consider. As a matter of precedent, they are one of the reasons we have the system of precedent so that people can rely on the decisions. Precedent also reinforces the impartiality and independence of the judiciary. The people need to know in this country that the judges are independent and that we're not making decisions based on policy views. Part of that is to understand we're following a system of precedent of what has been done before,

Day 2, Part I (46:20 – in response to Senator Diane Feinstein's question on Heller):

As a judge, my job as I saw it was to follow the Second Amendment opinion of the Supreme Court, whether I agree with it or disagree with it. At the end of the opinion, I cited Justice Kennedy's Texas v. Johnson quote, which I read yesterday as the guiding light for the lower court judges and all judges.

Day 2, Part I (48:58—Responding to Senator Feinstein's question on Roe being settled law):

Senator, I said that it's settled as a precedent of the Supreme Court entitled the respect under principles of stare decisis. One of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years. As you know, and most prominently, reaffirmed in Planned Parenthood v. Casey in 1992. As you well recall, Senator, when that case came up, the Supreme Court didn't just reaffirm it in passing. The Court specifically went through all the factors of stare decisis in considering whether to overrule it, and in a joint opinion of Justice Kennedy, Justice O'Connor and Justice Souter, at great length, went through those factors.

Day 2, Part I (51:53):

Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decisis factors, so Casey now becomes a precedent on precedent. It's not as if it's just a run-of-the-mill case that was decided and never been reconsidered. But Casey specifically reconsidered it – applied the stare decisis factors and decided to reaffirm it. That makes Casey a precedent on precedent. Another example of that as you might say of other cases like that is Miranda. So Miranda is reaffirmed a lot, but then in the Dickerson case in 2000, Chief Justice Rehnquist writes the opinion considering the stare decisis factors, in reaffirming Miranda. Even though Chief Justice Rehnquist, by the way, had been a fervent critic of Miranda throughout his career. He decided it had been settled too long, had been precedent too long, and he reaffirmed it.

Day 2, Part II (42:34 – in response to Senator John Cornyn):

There are a number of reasons you would cite stability, predictability, impartiality, reliance interests – but all of those are not mere policies, in my view. As I see it, the system of precedent comes from Article III itself. When Article III refers to the judicial power shall be vested in one Supreme Court and such inferior courts as Congress shall, from time to time, establish, to my mind, the phrase judicial power […] what does that entail? […] You look at the meaning—the meaning at the time of judicial power—and you look…one source of that is Federalist 78. It's well explained that judges make decisions based on precedent, and precedent, therefore, has constitutional origins and constitutional basis in the text of the Constitution.

Day 2, Part II (1:04:32 – responding to Senator Cornyn on "extraordinary circumstances under which the Supreme Court would revisit precedent"):

Well, Brown v. Board of Education of course overturned Plessy, and Plessy was wrong the day it was decided. It was inconsistent with the text and meaning of the 14th Amendment, which guaranteed equal protection, and the Supreme Court in the Strauder v. West Virginia case in 1880 had said what is this amendment but that the law shall be the same for the black and the white. The Supreme Court unfortunately backtracked from that clear principle in the Plessy decision in a horrific decision which allowed separate-but-equal, and then Brown v. Board corrected that in 1954. […] That was the greatest moment in Supreme Court history.

Day 3, Part II (1:10:10 – in response to Senator Ben Sasse's question on the importance of precedent):

Precedent is important for stability and predictability. To know what the rules are ahead of time is good for judging. To do it consistently with how it's been done before is part of the system of precedent. The point is, when the rules are set ahead of time by the precedent or by the law, then you're not making up the rules as you go along in the heat of the moment, which will seem unfair, which will seem like you're a partisan, because you're going to seem like you're favoring one side or the other because of allegiance or favoritism to that team rather than applying the rules ahead of time, which is why, in sports, there are a lot of detailed rules set forth about how the game is played and how referees and umpires are supposed to call the game. That's to ensure there is predictability and stability, and that the players can rely on that. Due process is not a word used often in the refereeing context, but it really is an element of due process. Notice of what the rules are ahead of time so that everyone has confidence in the fairness of the game and that the umpiring, which is critical to the outcome of many games, is done in a fair and impartial way. It facilitates impartiality, integrity of the game, fairness of the game. It's true for games, sports and it's true, I think the analogy is very strong. And this is why I wrote that article, because the Chief Justice, of course, talked famously about the judge as umpire, and because I coach and play a lot of sports. I really thought about the analogy, and I thought there are actually a lot of parallels between being a good judge and being a good umpire.

(1:13:44) After Sasse asks how a judge reconciles respect for precedent with incorrect decisions

Well the factors the Supreme Court looks at are whether the decision is not just wrong, but grievously wrong, whether it's inconsistent with the law that's grown up around it, what the real-world consequences are, including workability and reliance. One of the genius moves of Thurgood Marshall among many genius moves he made as a lawyer was to start litigating case by case. He knew Plessy was wrong the day it was decided, but he also knew, as a matter of litigation strategy, the way to bring about this change was to create a body of law that undermined the foundation of Plessy. He started litigating cases and showing, case by case, that separate was not really equal. He did it in cases like Sweatt vs. Painter and many other cases. He built up a record over time. By the time he went to the Supreme Court to argue Brown v. Board of Education, he had shown its inconsistency with the law built up around for those who weren't otherwise as quickly on board with the idea that Plessy was wrong the day it was decided. He was taking no chances. By the time it got to Brown v. Board of Education, the foundations for overturning Plessy had been strengthened by showing what the real world consequences were and by building up a body of law that was inconsistent with the principle—the erroneous principle set forth in Plessy. He had a strategic vision of how to do this, which was brilliant, and he effectuated it with lawyers over time, litigating case after case and building up factual records that would show the badge of inferiority from separate educational facilities, and separate facilities, more generally. That's how he was able to show that the precedent, even with principles of stare decisis in place, should be overturned.

(1:16:54) After Sasse asks about the purpose of dissents and why judges write them

We write dissents because we, in a multi-member court, disagree with the decision that is being made by the majority and because we think that the issue is sufficiently important. If you're on the Supreme Court, that perhaps a future court will pay attention to your decision or in a statutory case, maybe Congress will think your interpretation of the statute was better, and maybe Congress will update the statute to reflect your view. But the purpose of dissents in constitutional cases—I think Justice Ginsburg used to say this, Justice Scalia used to say this—dissents often speak to the next generation, and it's important, therefore, in cases of constitutional importance, to have those dissents. Harlan's dissent was a classic. It had some lines that are very memorable about the separation of races in the Louisiana rail cars, and that law had just recently been enacted. This was an example after the Fourteenth Amendment. After the Civil War and the Fourteenth Amendment, there was a period of positive movement—at least some positive movement, not complete by any stretch. Strauder v. West Virginia reflects that in 1880 where the Supreme Court says what is this but the law should be the same for the black and the white. That was a case where African Americans were being excluded from juries, all white juries, and the Supreme Court said no to that. Any progress went backward. It was reflected in the Plessy v. Ferguson decision, which upheld the separation of races in that case. The Harlan dissent was important for setting forth a clear principle rooted in the text of the Constitution and rooted in the principles of the Fourteenth Amendment and, subsequently, vindicated—at least on paper—Brown v. Board of Education.

(1:19:01) After Sasse asks why judges write concurring dissents and who is the audience

You can write a separate dissent or concurring opinion in the majority opinion. Sometimes you'll write a concurring opinion to the majority because you have a different rationale for reaching the same result. Sometimes [the audience] is future courts, but when you're at the Supreme Court, I think they're writing concurring opinions to influence or suggest things to lower courts about how this case—either another issue or related issue or tangential issue should be resolved in the lower courts. Sometimes the concurring opinion is written to the future Supreme Court that might be five years down the road about the issue that is being decided by the majority opinion.

(1:20:45) After Sasse asks what to do if, after being on the losing side of a 6-3 case, a judge is later confronted with a similar case (Maintain the dissenting opinion? Embrace that of the majority?)

As a matter of precedent, the ordinary course is that you follow the precedent of the Supreme Court even if you were on the losing side—maybe especially if you were on the losing side. There are times where justices have persisted in their dissents repeatedly over the years, particularly on certain critical constitutional issues – or sometimes they have not persisted in the dissent, but joined in the majority and said, "I still agree with myself back in the prior precedent where I had dissented originally." You see different approaches to this by different justices on different issues. I don't think it's a one size fits all answer to your question, at least in terms of what justices have done over time on that particular question. Most famously justices Marshall and Brennan dissented in every death penalty case because they did not accept the precedent of the Supreme Court that allowed the death penalty under the Eighth Amendment.

(1:21:55) After Sasse asks Kavanaugh what he, specifically, would do in such a scenario (Accept the majority opinion? Even write the majority opinion?)

That's what I think a good judge does, which is once the decision has been made, you accept the precedent, subject to the rules of stare decisis. Yes, there are lots of historical examples where that has happened and that's been done. Justice White had been a dissenter in Miranda v. Arizona, famously, and then wrote many decisions applying Miranda subsequent to that, accepting the decision. Chief Justice Rehnquist, of course, ultimately wrote the decision where the question was whether to overrule Miranda and wrote the decision reaffirming Miranda because he decided at that point that it did not meet the conditions for overruling a precedent, in that case. So, ordinarily you get on board with the precedent, but you might still write separately to say, "I think this was a huge mistake, and we should go back to a different approach." You see that sometimes. I think there are lots of permutations to the question you're asking.

(1:23:26) After Sasse asks what the difference is between a Supreme Court justice's job and an appellate court justice's job vis-à-vis precedent

At the D.C. circuit level or the court of appeals level, we follow vertical stare decisis absolutely, and that means that we are not permitted to deviate from a Supreme Court precedent. When I'm on the D.C. circuit and we're reconsidering en banc a prior precedent of our own, we can do that at times if the conditions for overruling a precedent are met. We can't do that with respect to Supreme Court precedent. We have to follow that. And why is that? That's because there's one Supreme Court in a hierarchical system, and lower courts have to follow that, or there would be chaos in the federal system if lower courts weren't strictly bound to follow precedent of the Supreme Court.