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Saturday, July 08, 2006

Are Supreme Court Justices Bound By Supreme Court Precedent?

While reading Justice Stevens' dissent in Kansas v. Marsh, which is largely focused on explaining why his joining Justice Blackmun's dissent in Walton v. Arizona does not commit him to agreement with the majority in Marsh, I was again reminded of a question that has bothered me ever since I read Justice Scalia's dissent in Dickerson v. U.S.: Are supreme court justices bound by supreme court precedent? The apparent answer is no. They can rule any way they like. In Dickerson, the majority ruled that 18 U.S.C. 3501, which purported to overrule Miranda, was unconstitutional.  In dissent, Scalia explained why he disagreed and concluded his dissent by announcing that until §3501 is repealed, "[I] will continue to apply it in all cases where there has been a sustainable finding that the defendant's confession was voluntary."

Does this strike anyone as a problem?  It does me.

Most everyone else is required to apply the law as the Supreme Court articulates it. Circuit court judges, for example, are required to apply supreme court precedents even where they vehemently disagree with them.  Executive branch officials must implement those precedents. Unlike majorities of the Supreme Court, individual justices have no power to change the law, so why should individual justices be any different?

Scalia certainly was not the first to renounce an intention to follow the Court's precedents. Justices Brennan and Marshall consistently refused to uphold death sentences long after the Court ruled in Gregg v. Georgia that the death penalty was constitutional.   (Although it strikes me that there is a difference of kind between Scalia's disavowal in Dickerson and Brennan/Marshall's anti-death penalty stance).

Does it matter whether Justices feel bound to follow precedents with which they disagree? After all, they can always state reasons for their rulings in subsequent cases, as did Brennan and Marshall, independent of their disobedience.  It seems to me, though, that when individual Justices refuse to acknowledge the legality of the Court's governing precedents, and apply those precedents in good faith, it negatively affects the growth and development of the law.  Thus, in a future Miranda case, Justice Scalia might cast the deciding vote based on 3501 , creating a new precedent that might not be the best fit with existing precedent. This seems a great recipe for creating incoherent doctrine.  If each Justice is his or her own sovereign entity, then we don't have a single jurisprudence, but instead nine "jurisprudentia." 

An intuitive understanding of this problem is probably why, most of the time, judges try to reconcile their present votes with past precedent with which they disagreed, as does Stevens in Marsh. What we get most of the time, I suppose, is a kind of individualized stare decisis, which is perhaps as good as we can hope for, since there is no way to prevent Scalia/Brennan/Marshall acts of judicial disobedience.

Posted by Russell Covey on July 8, 2006 at 07:18 PM in Constitutional thoughts | Permalink


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As a layman, I've always wondered about the relationship between Plessy and Brown,since they didn't engage the same principles.

In Plessy, the court ruled that a state government could order a private enterprise (railroad) to segregate, over its objections and at cost to it.

In Brown, the court ruled that a state government could not segregate its own resources (a school).

It seems to me that one could find Plessy wrong on grounds that have nothing to do with segregation itself.

What if the Plessy case had been about the segregation of Roman Catholic Parish Schools in Louisiana ? Could the state force them to segregate?

Posted by: CUW | Apr 13, 2019 9:51:52 AM

Birthright citizenship to illegal aliens including hostile terrorists, communists, hostile foreigners and just plain stupid breeders could be our doom although I don't think they (SCOTUS) have specifically said anybody born here automatically gets citizenship without regard for their foreign allegiance or legal residency. (how thoughtful for them to avoid the issue for millions of invaders)

Clearly granting citizenship to foreign temp workers, students, tourists, and illegal immigrants and diplomats is "stare decisis" (we didn't previously give citizenship to children of foreigners who didn't legally emigrate, in fact we booted foreigners) on the other hand I don't think the children of foreign UN workers are excluded either (in practice, not law) and the whole concept of birthright citizenship granted to everyone is reliant upon Constitutionally mandated protection from foreign invasion and secure borders which our government no longer practices.

America is no longer a republican form of government whereby it's citizens choose their future-ie self determination, now we're subjected to the whims & wishes of foreigners and federal officials who allow them.

Look at the cost of 70 million Hispanics, we wouldn't be in Iraq on an oil quest without them, our oil consumption would be 25% less than current levels and dropping every year with technology increases.

With competent immigration screening we wouldn't have had 9/11 and 5,000 less murders by illegal immigrants, or 15,000 fewer drunk driving deaths caused by illegals.

Stare Decisis costs big time, not only in higher taxes and more murders it could be America's doom. We could easily get obliterated by hostile foreigner's votes-citizenship through adverse posession, it only takes 2/3 the population to trash the constitution forever.

Where I live over 2/3 of the population are Mexican Socialists.

Civil war is coming without a change to the birthright citizenship practice, they saw the last one (Civil war) coming 60 years out, I saw this one 20 years ago.

Posted by: Smitty | Jul 10, 2006 6:10:54 PM

i find it odd to suggest that scalia (or any justice) is "bound" by a thew majority's justice in any particular case.

if that were true, wouldn't that defeat the purpose of dissents entirely? after all, if scalia is "bound" by the will of 5 justices, doesn't he have no grounds whatsoever to dissent? or, would one argue that the decision doesn't becoming binding until it is actually released (and thus a contemporaneous "dissent" isn't necessarily a refusal to 'follow precedent')? that seems like a silly distinction to me, however-- if one really believes that scalia must be 'bound' by the opinion of 5 justices, i don't see how it makes sense to permit him to dissent at the time of the original decision, but then require that he subscribe to the majority in all subsequent decisions. or, is a dissent merely to be some type of consolation prize, whose arguments must be forever disregarded?

having only glanced at scalia's dissent, i think he is completely correct to continue to apply 3501 until its repeal (if he sincerely believes that it is not unconstitutional). lower courts obviously have a different role, but surely a supreme court justice should not be bound by "precedent," especially one as ill-conceived as miranda.

Posted by: andy | Jul 9, 2006 4:20:57 PM

"He is proclaiming that though an Act of Congress was struck down by Congress, he would decide cases in the future as if that law was still on the books."

Well, *isn't* it? A decision by the Supreme Court entails only that, in the case at hand, the Act of Congress has no legal force. It doesn't wipe the Act from the statute books. (Should Roe be overturned tomorrow, any as-yet-unrepealed prohibitions on abortion would still be valid law.)

The real question is whether, if an individual Justice would be entitled to vote with a majority to overturn a previous decision, she should be entitled to vote to do so in dissent, or by concurring in a judgment. And unless you've got a very deep-seated prejudice against concurring opinions, I don't see why not...

Posted by: Anon | Jul 9, 2006 2:56:51 PM

Yes. My question obviously is not whether the Supreme Court as an institution has the authority to overrule past precedent. Of course it does, and thank heavens for that. The question is whether an individual Supreme Court justice can be "bound" by precedent where his/her views are not, and will not, be shared by a majority. Thanks Jennifer for clarifying some of these issues. I think what Scalia did in Dickerson is above and beyond the usual judicial disobience. Think about it. He is proclaiming that though an Act of Congress was struck down by Congress, he would decide cases in the future as if that law was still on the books. That seems to me an even more pointed case than the Brennan/Marshall insistence that the death penalty is unconstitutional, an issue that is, after all, germane in every death penalty case.

Posted by: Russell Covey | Jul 9, 2006 12:28:16 AM

There is a difference between joining with a majority to overrule precedent--a decision that should involve considering the role of stare decisis--and persistently refusing to follow precedent even when overruling is off the table for the moment. Just at a practical level, failure to acquiesce is likely to exacerbate problems with splintered decisions in which, for example, the deciding vote is cast on the basis of disagreement with a precedent that nonetheless remains good law.

Brennan and Marshall's refusal to acquiesce in the death penalty decisions was, in my view, a form of civil disobedience--a legitimate technique, but one which must be used sparingly to retain its effectiveness. Refusing to acquiesce on a wide array of points, some of them rather technical, just makes one look petty, at least from the perspective of a legal establishment that wants the Court to produce reasonably coherent rules to be applied by lower courts and respected by the public.

There was a discussion of this issue a while back on the conlawprof list, including discussion of one Justice (the second Harlan, perhaps?) whose announced policy was to adhere to his own dissents until the end of the term, but acquiesce in future terms. (This rule may be related to a rule of procedure followed in some courts, which allowed an appellate court to recall its mandate until the end of the court's term--perhaps he was holding out hope that his colleagues will change their minds. But I don't know what the Supreme Court's ability is to recall its mandates.)

Posted by: Jennifer Hendricks | Jul 8, 2006 10:53:36 PM

The most famous acts of Supreme Court judicial disregard of precedent were the consistent Brandeis/Holmes dissents from First Amendment cases, taking a stand on free speech that we virtually unanimously take for granted today, or at least did until McConnell v. FEC.

Posted by: Ted | Jul 8, 2006 10:19:42 PM

Not bound, I thought, but respectful of. I have a vague recollection that Justice Harlan, in his concurrence in Gideon v. Wainwright (which "failed" to follow Betts v. Brady), said something like he agreed Betts should be overruled, but wanted to accord it a kinder burial than had the opinion of the Court.

Posted by: Jeff Lipshaw | Jul 8, 2006 8:18:08 PM

Isn't it obvious that Supreme Court Justices aren't bound by the Court's precedents? Think Brown v. Board, Lawrence v. Texas, West Coast Hotel v. Parish, etc. Do you think that Brown v. Board "negatively affects the growth and development of the law"? Was that really judicial disobedience?

Posted by: LuistheLawProfessor | Jul 8, 2006 7:43:23 PM

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