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Thursday, April 13, 2006

Somin on Nagel on precedent

Over at the Volokh Conspiracy, Ilya Somin has this post, discussing this recent magazine essay, ""Bowing to Precedent," by Robert Nagel.  Here is a bit from the Nagel piece:

Respect for precedent means not only that the justices should follow the specific outcomes of prior cases but also that they must follow their logic. The logic of legions of cases demands that judges second-guess legislative and executive decisions on the most sensitive moral and political issues and that judges decide for themselves on the appropriate means for achieving preferred policies. The simple fact is that constitutional law as set out in the cases now requires judges to legislate from the bench. Nominees to the Court can repeat endlessly that judges should interpret, not make, law. But unless they are willing, once on the Court, to rethink the logic of prior cases, they will have to make law.

This displacement of political decision-making has had deeply harmful consequences for our society. It has led Americans to lose political self-confidence and to depend pathetically on the judiciary to resolve the most pressing public issues. At the same time, since judicial resolutions tend to be couched in the language of high principle, the Court's role has reduced the opportunity for political compromise and thus has inflamed passions and distrust.

In response, Somin writes:

. . . Robert Nagel makes a strong argument that the Supreme Court's rhetoric (if not its practice) gives too much respect to its own precedent and not enough to the Constitution that the precedents are supposed to be expounding. After all, Judges swear an oath to uphold the Constitution, not the Court's prior precedents. At least in principle, when the precedent conflicts with the Constitution, it is the precedent which should give way.

I agree with many of Nagel's points. But like most other commentators, Nagel does not give a fully satisfactory account of when a flawed precedent should be maintained because reversing it would be too disruptive of settled expectations ("reliance interests," as lawyers call it). Nagel argues that the expectations created by Roe v. Wade are not enough to justify keeping it in place. But he fails to articulate any kind of general theory of how strong reliance on a flawed precedent has to be in order to justify not overruling it.. . .

The lack of such a theory makes it easier for partisans of all stripes to claim that their preferred precedents should be untouchable because they protect major reliance interests, while arguing that the other side's are ripe for overruling.


Posted by Rick Garnett on April 13, 2006 at 04:50 PM | Permalink


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For the last couple of weeks, actually, I have been quite despondent about this issue, and another closely-related one.

Lee Strang has pursuasively demonstrated, I think, that originalism must have some theory (or at least, a theoretical debate) to account for stare decisis, if for no other reason than because stare decisis was almost certainly part of the original understanding of the judicial power. The problem - for me, at least - with Strang's essay is that, as with Ben Wittes' essay What Is “Cruel and Unusual”?", it raises more questions than it asks. Although I accept Strang's and Wittes' criticisms, I don't feel that the solutions they offer adequately shoulder the burdens created by their criticisms of preexisting theories. I think Somin's comments have the same problem; his criticisms of Nagel's article are mostly fair and accurate, but he doesn't really make a "fully satisfactory account of when a flawed precedent should be maintained" of his own.

I am left with more questions than answers. I don't feel that I've made any more headway on formulating a coherent theory of precedent that meets Strang's criteria since I wrote in November that:The Originalist must either declare that stare decisis is irrelevant, and rule accordingly, or one must seek to reconcile the two. I don't believe that stare decisis is irrelevant; as I explained [previously], I believe that "precedent must always be examined, and provided that past precent is reasonable and consistent with the plain [original] meaning of the text, that line of precedent should control, even if it demands an interpretation that I would not reach as an original matter." The good Originalist, in my view, should structure an opinion on a constitutional case thusly: an identification of those provisions implicated, a discussion of the original meaning of those provisions, a discussion of all relevant precedent, a dismissal of those precedents which cannot be reconciled against the original meaning, and finally, a conclusion demanded by the text itself and the precedents determined to still be valid.By "previously", I mean my comments here at Concurring Opinions from October. I stand by everything I said in that post, but - like Strang, Somin, and frankly, Our Hero, if I dare to fail with such auspicious company - that's all well and good as a general framework, but it's unsatisfying as a practical guide. I'm pursuaded that the Eighth Amendment must have broader effect than Our Hero would allow -- and I'm likewise pursuaded that originalists must come up with a coherent account of stare decisis, one which either explains why it should be dispensed with entirely (which is to say, I think that Justice Thomas has a more consistent, if not necessarily better, answer to this question than does Our Hero) or when it should apply and why. To my chagrin, I do not yet have a good theory to offer for either.

Posted by: Simon | Apr 13, 2006 5:38:10 PM

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