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Tuesday, July 11, 2006

Strong Stare Decisis and the Limits of Dissent

Over at the Legal Theory Blog, Lawrence Solum has posted a very interesting response to my and Will’s posts on the issue of whether a Supreme Court justice is bound by precedent.  I conclude from his post(s) that the answer should be yes, but that in practice everyone is quite skittish in embracing such a strong theory of stare decisis.  I will say a few words in the spirit of sketching out a protean, institution-enhancing argument for deference to precedent. First, I should acknowledge that there is a healthy debate out there regarding the extent to which precedent actually impacts judicial decisionmaking. On the one hand, Harold Spaeth and Jeffrey Segal have garnered empirical data, see book review here, showing that dissenting justices usually do not come round in future cases to embrace the principle they initially rejected.  So although this kind of deference is shown by dissenting justices occasionally, it is not the norm. Many social scientists, like Spaeth and Segal, conclude from such data that legal doctrine is largely irrelevant and that judges simply vote their ideological preferences.  But that is clearly not the whole story.

A recent study by Stefanie Lindquist and David Klein of Supreme Court decisions that resolve circuit splits provides strong evidence for what most legal academicians have always insisted, that the Court does not merely vote its policy preferences but rather is influenced by, and does attempt to respect and clarify, legal doctrine based on legal principles. Contrary to what the pure attitudinal theories predict, Lindquist and Klein’s study shows that the Supreme Court is at least equally swayed by such conventional jurisprudential considerations as how the majority of lower appellate courts resolved a legal issue, or what particularly prestigious judges have written about the issue, or whether there was a strong dissent below. Thus, I think (hold onto your hats) that the “legal model” of judicial decisionmaking is far from dead. Indeed, it seems to remain the main thing that judges do, or think they do.

Second, although I disagree with Will that Supreme Court precedents are not intended to, and do not, make law on a prospective basis and do not bind non-judicial actors (there are ample instances in which a failure to comply with “clearly established law” subjects individuals to damages, think Section 1983, Bivens, etc.), I readily concede, as Michael Gerhardt and others have argued, that “there is no norm that obligates, or requires, Supreme Court Justices to defer to precedents to which they dissented. The Court allows dissent, and leaves the Justice with the discretion to determine the extent to which they will each adhere to, or refuse to follow, particular decisions to which they dissented.”  That said, I believe such a norm should be nurtured, and given some, though not total weight, in the interest of strengthening the “law’s voice” and expanding the Court’s institutional resources.  After all, the “right” to dissent seems to me to flow from, and be limited by, the institutional structure of the Court, and the right to lawfully dissent is a special privilege of Supreme Court justices limited to their institutional prerogatives.  It should be exercised, as my classmate Kevin Stack artfully argued in the YLJ, to further the Court's legitimacy and to deepen democratic deliberation.

Let me illustrate with the following thought experiment. Imagine that the Court were to hear a case involving the constitutionality of a statute making Declaration-of-Independence burning a crime, and further making violators liable for all emotional harms caused by their conduct. A majority of the Court rules that the statute is constitutional. Justice Scalia dissents, arguing that a proper understanding of the First Amendment demonstrates that such a statute is incompatible with the constitution. Justice Scalia then returns to his home, which is located in a jurisdiction in which the statute is operative, and considers burning his copy of the Declaration.  Justice Scalia then goes home and, disgusted with his colleagues, burns his copy of Declaration on his front porch in protest. Now, we may laud Justice Scalia for his courage, but we would not say that his act was “lawful,” even though Scalia the Justice firmly believed the statute outlawing his conduct was unconstitutional.  Consistent with notions of vertical stare decisis, we would expect the judge presiding over his prosecution, and the various appellate judges hearing his appeal to follow the majority’s holding rather than Scalia’s dissent in reviewing the lawfulness of the prosecution.

Now imagine the next case involving the statute comes before the Court (and, surprise, Scalia does not recuse himself), which involves an action by a spectator to a Declaration-burning for restitution. The question in the case (I’m just making this up, so go with me here) is whether the spectator is entitled to compensation even though he was not actually present at the burning.  Four members of the Court say yes, actual presence is required for compensation. Four say no, there need not be any actual presence. The two sides argue about the usual indicia of statutory interpretation – text, purpose, original intent, etc.  Scalia casts the deciding vote against awarding restitution to the spectator. According to Scalia, though the best interpretation of the statute qua statute is to award restitution for psychological damage without requiring proof of actual presence, because Scalia believes the statute unconstitutional, he will concur with those justices who favor the more stringent interpretation. 

Okay, no one is saying that Scalia is in any way prevented from so reasoning and voting. Judges are usually free (within limits – e.g., even a Supreme Court Justice would probably be wise not to write an opinion explaining that she ruled for plaintiff because of the $20,000 bribe plaintiff paid) to rule any way they like, and to give any reasons for that ruling they like. But if we take judging seriously as a craft, and the current crop of justices by and large surely do, then we must observe some limits to the kinds of reasons that are generally possible for reaching particular decisions, or for disregarding certain precedents that otherwise constitute binding law.  And note that Scalia is free to ignore precedent on a decided question in his role as a justice where he cannot in his role as a citizen.  So what is the upshot of that distinction? Well, it might suggest that Supreme Court justices have a certain, and relatively unique, relationship to precedent. It might also suggest that the shape and contours of the privilege to disregard precedent (really, law) should be bounded by recognition of the institutional interests of the Court. In other words, Scalia the Justice’s “privilege” to disregard precedent should only be utilized in service of enhancing the legitimacy of the Court and the integrity of the law.

Here, arguably the interests of the Court in developing coherent doctrine are better served were Scalia to 1) point out that he continued to believe that in his view the statute was unconstitutional, but 2) given the Court’s established precedent to the contrary (which is not in play in the current case), the best interpretation of the statute based on his interpretative philosophy is that pure psychological damage is enough (or whatever). 

Contrary to his disclaimers, I actually am compelled by Lawrence Solum’s case for a regime of strong stare decisis, which is what I suppose underlies my discomfort with Justices announcing their intention to disregard decisions made by a majority of their brethren, especially when it seems to create whole parallel universes of alternative precedent that, in theory anyway, threaten to grow bizarrely complex. Any court of last resort, by definition, is not subject to external constraints. Thus, the only constraints will be those generated internally. As an institution, the Court has an interest in consolidating its voice and simplifying its message – the too-numerous-to-count many-splintered decisions of recent terms do little to tell either the lower courts, the executive branch, or the common folk “what the law is.” And if folks (or judges) don’t know what the law is, they will tend to act in conformity with their own predilections, which will contribute to a great diversity of views regarding what the law is, and which will complicate the efforts of any policymaker (be it judge or legislator) to orchestrate a rational response.  To the extent that even Supreme Court justices can find it within themselves to defer to precedent they don’t agree with, but can’t muster a majority to overrule, the clarity of legal doctrine might actually be improved.

Posted by Russell Covey on July 11, 2006 at 07:29 PM in Constitutional thoughts | Permalink


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The fact tbat so many books and articles have been written about the jurisprudence of Justice X shows that we expect justices to produce a relatively internally consistent body of work over their careers. Furthermore, the tradition of the dissent that appeals to the future, which sometimes arrives during the tenure of the dissenter, counsels that one not give up one's strongly-held views lightly.
How are justices to be true to their beliefs and still respect stare decisis? How are they to do so and still respect their obligations to the collegial institution they comprise? They pick their spots and they pick their modes.
One way is to argue principledly for a while and then agree to disagree. Brennan and Marshall's one-sentence dissents in death penalty cases, and Stevens' one-sentence dissents to orders prohibiting abusive filers from filing in forma pauperis are examples of this.
Another way is to announce in dissent that one will not be bound by the decision. The federalism cases are examples of this.
Another way is to address one's past decision, distinguish it, and concur. O'Connor did that this term or last in a case I can't recall.
Actually, the more interesting case is where justices decide not to stick their own dissents. Given his personal investment in the Sentencing Guidelines, I find Breyer's opinion in Booker/Fan-Fan more revealing of his inner compass than his paeans to pragmatism.

Posted by: r.friedman | Jul 13, 2006 9:48:10 AM

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