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Thursday, February 06, 2014

Supreme Court Precedent and the Problem of Pluralism

Following up on my previous post, I thought I'd say a bit more about the process of construing Supreme Court precedents, as well as the interplay between that process and the Court's pluralistic approach to legal interpretation.

As I explain at greater (probably too great) length in my paper on the scope of precedent, it seems to me that on certain accounts of Supreme Court adjudication, a narrow view of precedent is quite problematic. To the extent one believes (whether for reasons that are originalist, pragmatic, or otherwise) that the Court should play a significant role in managing the federal judiciary, one might well prefer that Supreme Court pronouncements be construed broadly, at least in the lower courts. Likewise, if one believes that the rule of law and the ideal of an impersonal judiciary are enhanced when the Supreme Court defers to its past pronouncements, a broad view of precedent may be more attractive. And so on.

Of course, there are arguments for resisting this broad vision of precedent. The text and/or history of the Constitution may support a narrower view of precedential effect. Broad definitions of precedent may lead to excessive displacement of enacted text with judicial gloss. Wide-ranging Supreme Court opinions may create serious risks of error entrenchment, or they may leave lower courts with too little room to innovate. These are the sorts of claims that should inform the question of how precedents are construed.

The more general point is that it tends to be distracting to talk about "holdings" and "dicta" in the abstract. The choice to treat a given judicial proposition as presumptively binding (or not) has deeper theoretical implications that need to be confronted. When the Supreme Court defers to, say, its doctrine of selective incorporation under the Due Process Clause, what is it implying about its own power and institutional role? When the Court treats language from a prior opinion as unworthy of deference because the language was unnecessary or merely "descriptive," what is it suggesting about the nature of precedent?

One response is that the Court uses precedent as a rhetorical prop, citing it when helpful and discarding it when troublesome. But that's not the only explanation. It might be that the jurisprudence of precedent is still being worked out and that, in time, a more coherent approach can emerge in the caselaw. (I'm sympathetic to the latter view.)

All of which brings me to an important point about judicial consensus that Michael Ramsey raised over at the Originalism Blog. Assuming that the Court makes a habit of talking more explicitly about the reasons why some judicial pronouncements deserve deference and others do not, will it be able to achieve anything approaching consensus in the treatment of precedent? After all, the Court hasn't embraced any uniform approach to legal interpretation. Instead, the Court's interpretive approach (as well as the approach of some individual justices) is essentially pluralistic, drawing from a variety of interpretive modalities. If the Court can't agree on its underlying theoretical premises, and if the treatment of precedent is necessarily derivative of those premises, what is to be done?

It's a difficult question, and one that I think requires a pretty substantial rethinking of the Court's approach to precedent. This relates not simply to the manner in which precedents are defined, but also to the strength of deference that precedents receive; only by consulting underlying normative commitments can a judge determine how important it is to correct a given mistake. (I've written more about the relationship between interpretive pluralism and the scope of precedent here.) In the meantime, it would be useful to see more consistent discussion by the Court of the motivations for, and implications of, defining precedents broadly or narrowly. Even if the result were an uptick in the number of separate opinions that address the meaning of precedent, that strikes me as a reasonable price to pay for greater insight into the drivers of precedential effect.

Posted by Randy J. Kozel on February 6, 2014 at 02:02 PM | Permalink


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Many thanks for the kind words about the paper (and for the typo fix). I agree that the examples you raise reinforce the uncertainties that the paper is trying to grapple with. The question of what exactly the Supreme Court is doing when it decides a case is so basic and essential, but the answer depends (in my view, at least) on a set of deeply complex and controversial judgments that don't always get the explicit vetting they deserve.

Posted by: Randy Kozel | Feb 10, 2014 1:06:09 PM

The paper was too long for me because of an eyesight problem but I'm glad I worked through it as the paper was well done. As I was reading the paper, I thought of Heller and McDonald on the Second Amendment with regard to each case's holding/dicta and the precedent/guidance offered to the lower federal courts and to state courts. The holding in each case was narrow with respect to certain guns as arms in the home for self-defense. The dicta in each case was fairly broad. While the cases were each resolved 5-4, both sides relied upon some form of originalism. So perhaps the dicta might provide broader precedent/guidance. But the history utilized by both sides has been seriously questioned by several originalists and professional historians. McDonald was decided in 2010. While there have been many cases brought in lower federal courts since McDonald, I don't recall that cert has been granted on any as yet. What arms in addition to guns will be covered by the Second Amendment? Will rights extend beyond the home? Will "reasonable" restrictions such as suggested in dicta be recognized? To what extent will interpretive theory - originalism, non-originalism, other - determine?

[Note: Page 44, last line, should "guide's one" be "guide one's"?]

Posted by: Shag from Brookline | Feb 9, 2014 9:11:30 AM

As to more separate opinions, this brings to mind a mention in a book by Prof. Helen J. Knowles regarding Justice Kennedy's separate opinion in J.E.B. (jury challenges by gender). He wanted to voice an opinion about his reading of the precedents and decided (the author noted Blackmun was concerned that he was not joining the majority in full & wished to know if there was a way to address his concerns, explaining why we know this) to write separately since the majority already had five votes.

Separate opinions of that sort seems to me more satisfying than those that lead to confusion because there are not five votes for any one opinion. I have a certain sentiment to concurring opinions to be honest since they can provide interesting additions. But, when they result in fractured holdings, less so.

Posted by: Joe | Feb 7, 2014 10:39:53 AM

More separate opinions? I was with you until then! =-)

Posted by: Rick Garnett | Feb 6, 2014 3:04:12 PM

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