Precedent and the Conservative Court

In the spring of 2019, the Supreme Court's new majority, which by then included two Trump appointees, overturned one of the Court's decades-old precedents. In Nevada v. Hall, decided in 1979, the Court had ruled one state could not claim sovereign immunity in another state's courts. The Court's 2019 majority, in an opinion authored by Justice Clarence Thomas, concluded that Hall had misread the historical record and that its rule had survived as an outlier.

For Justice Stephen Breyer, who was in the minority, this rationale was not enough. "[J]udges may be tempted to seize every opportunity to overrule cases they believe to have been wrongly decided," he wrote, "[b]ut the law can retain the necessary stability only if this Court resists that temptation." He ended on a foreboding note: "Today's decision can only cause one to wonder which cases the Court will overrule next." (...)

Indeed, by historical standards, the Roberts Court has been remarkably unwilling to overturn past decisions. The Warren and Burger Courts overturned an average of four Supreme Court precedents each term. Even when counting some of its more perplexing statements as overrulings — including declarations that "the court of history" had overruled the 1944 decision of Korematsu v. United States and that the 1896 ruling of Ward v. Race Horse had been "methodically repudiated" — the Roberts Court has overturned, on average, a little over one decision per term.

More recently, some signs have emerged of the Court's increasing readiness to overturn precedent. Since Justice Gorsuch joined the Court in 2017, the average is up to three overrulings per term. The appointment of Gorsuch, along with those of Justices Brett Kavanaugh and Amy Coney Barrett, have and will continue to shift the intellectual makeup of the Court.

The recent overrulings have provided an opportunity for the justices to reason about the nature and authority of judicial precedent. To the nation's great benefit, several justices in the conservative majority have forthrightly described the conditions under which they would vote to overrule precedent. By publicly elaborating criteria for overruling past decisions, these justices have provided a way for the governed to hold them accountable to a neutral set of principles. They also offer some valuable clues as to which way the Court's new majority may be headed and the internal divisions that may characterize it. More important still, their discussions illuminate the role and the limits of judicial authority in our constitutional system.

The Precedent Debates

The Court's deference to its own precedents under the doctrine of stare decisis serves many important functions. It pushes the justices to learn from past example. It allows justices who disagree strongly about fundamental interpretive questions to find points of agreement. While the originalist and the living constitutionalist may disagree about the Constitution, precedent allows each to recognize that, as a factual matter, the Court has decided a given constitutional question before and then permits them to agree to let it stand. Perhaps most important, precedent is good for public faith in the Court as a court of law. If changes in the makeup of the Court caused a sea change in the law, the Court would increasingly resemble a legislature, weakening the case for its independence from electoral politics.

It is an old joke, though, that stare decisis is Latin for "stand by things decided when it suits our purposes." Every justice believes some opinions must be overruled some of the time — the question is which ones those are. For this reason, Justice Breyer's contention that stare decisis is essential because it constrains judges from deciding cases based on the vagaries of preference may be exactly wrong. A judge who believes a past decision was erroneous as law the day it was decided but likes the decision as policy would find that stare decisis enables him to reach his preferred result and uphold the past decision. The norm of adherence to precedent may therefore expand, not constrain, judicial discretion. What is needed to constrain judicial caprice, then, is not the call of mere stare decisis, but rather a clear, cross-cutting test for when precedent constrains a judge — and, equally significant, when it does not.

by Jeremy Rozansky, National Affairs | Read more:
Image: uncredited