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Wednesday, February 17, 2016

The New Supreme Court and the Jurisprudence in Exile

During the past 20 or so years, the Supreme Court’s more liberal justices have created a kind of jurisprudence in exile. This is most apparent in areas like campaign-finance, sovereign immunity, the Second Amendment, and taxpayer standing in Establishment Clause cases, where more conservative majorities have repeatedly defeated exasperated four-Justice dissents. A similar point could be made about areas like abortion rights and the exclusionary rule, where there are sometimes defections but also 5-4 splits in key cases.

Yet the old five-Justice bloc is no more, and a new one might soon arrive. Let’s assume something that seems plausible but remains very far from certain—namely, that Justice Scalia’s ultimately confirmed replacement has a judicial philosophy that resembles Justice Sotomayor’s or Justice Kagan’s. And let’s further assume that the resulting nine-Justice Court retained the same personnel for a significant period of time. Would the Supreme Court suddenly disregard Citizens United and other controversial rulings, in favor of the dissenting opinions in those cases? Would the jurisprudence in exile reclaim the throne?

Here are a few predictions, given the assumptions above.

First, the new, more liberal Court would feel partially constrained by stare decisis, leading to precedential narrowing and other forms of gradualism that we have seen in the Roberts Court. True, Citizens United and other cases are so opposed in some quarters that Democratic presidential candidates have essentially proposed a “litmus test” that any of their nominees must be prepared to overrule them. And Justices chosen in this way would likely also agree that the precedents at issue are misguided. But precedential reversals occasioned by personnel changes are often thought to undermine the rule of law. That idea, at any rate, was central to the rationale of Planned Parenthood v. Casey, which refused to overrule Roe v. Wade after a personnel change. And a similar dynamic seemed silently to influence Chief Justice Roberts and Justice Alito, who slow-pedaled major rulings by engaging in gradualist decisions, including in the area of campaign finance. Given that the Roberts Court has been heavily criticized in its first decade for “changing the law” in a conservative direction, it would be somewhat awkward for those critics now to insist on an even sharper turn in the opposite direction.

Second, at least some lower courts would pay greater attention to the jurisprudence in exile and, as a result, would adopt relatively narrow readings of the Court’s more conservative rulings. This trend would arise for several mutually reinforcing reasons. Many judges are simply pragmatic about these things: all things being equal, they would prefer not to be reversed. And that commonsense intuition might soon point toward the jurisprudence in exile.  Moreover, that approach has a certain intellectual pedigree. While lower courts are generally barred from overruling higher-court decisions, there is no comparably clear prohibition against narrowing from below. Moreover, there is a respected intellectual tradition in favor of the “predictive model” of vertical stare decisis, which maintains that lower courts should generally do what they predict a higher court would do. Judges may tend to adopt this approach when they happen to agree with the higher court’s disposition. And after seven years of Democratic appointees to the federal bench, most circuits would now be on the same wavelength as the hypothesized new Supreme Court majority. These factors could add up to an unprecedented degree of narrowing Supreme Court precedent from below.

Third, advocates at all levels of the judiciary would shift their attention away from separate opinions by Justice Kennedy and toward the jurisprudence in exile. This shift in attention would be both a consequence and a cause: that is, it would occur because advocates understand the basic trends discussed above, and it would also add fuel to those trends. To be clear, advocates would continue to care about authoritative precedent, as they always have. But when leavening their conventional precedential arguments, advocates would realize that it is no longer so important to appeal to Justice Kennedy’s concurrences and dissents, since he is no longer so likely to be the marginal vote. Instead, it would be more valuable to master the jurisprudence in exile. That is, advocates would know that the jurisprudence in exile would hold sway in the newly constituted Supreme Court. And lower courts would know that, too. Advocates would feed that appetite. In some contexts, we might even see a new norm in favor of considering dissenting opinions. If that sounds hard to believe, just look at how many times the Citizens United majority and winning briefs cited dissenting opinions.

Fourth, as the newly constituted Court engaged in gradualist legal change and began to generate its own jurisprudence, the Court’s new case law would dilute the importance of the jurisprudence in exile. Again, the causes would be mutual and reinforcing. The newly constituted Court would feel awkward about citing too often to dissenting opinions, and over time it would generate an increasing store of its own recently authored, conventional precedents to rely on instead. The new precedent would also be more valuable: it would be influenced by whoever is ultimately added to the Court, and it might be more cautious in scope and wording than the non-authoritative proposals previously aired in dissenting opinions. The new Court might even repudiate some of the jurisprudence in exile. Recognizing all this, lower courts would be more interested in what the current Justices think than what their predecessors wanted. And, again, advocates would follow suit. The jurisprudence in exile would therefore have a key role only in the early years of the new Court. It would facilitate the legal system’s gradual transition toward a revised jurisprudence. But, before too long, more conventional, long-term citation practices would be restored.

At the end of the process described above, what would have happened? Many conservative precedents would have been narrowed in the Supreme Court—or, to use a recently popular if pejorative term, conservative rulings would be subjected to “stealth overruling.” Additional conservative precedents would have been narrowed from below, as lower courts adjusted their case law to the new vertical reality. And a few especially salient conservative precedents, like Citizens United, would likely have been outright overruled—but by and large, those reversals would happen only after a delay, perhaps after the new majority had issued a warning shot or two. In other words, we would likely see a more liberal version of the controversial legal changes that have marked recent years.

Again, all of this is predicated on the assumptions noted at the outset, so none of this may come to pass. Still, it’s worth testing whether our intuitions on precedential change would themselves change, if the proverbial shoe were on the other foot.

Posted by Richard M. Re on February 17, 2016 at 08:15 AM | Permalink


Mr. Levene has correctly paraphrased Brezhnev's Principle: What's ours is ours; what's yours is negotiable. They will chew up stare decisis and spit it out. As the Warren Court did.

As to the case posture to overrule Citizens United, with a sufficient will a test case can be concocted. Maybe the posture of the case will be unprecedented. So what? An advantage of five leftist votes in the Supreme Court is that they can do whatever they want.

I am grateful to Mr. Orwell for this example: they could--and if it were an essential part of the leftist agenda, would--declare that under the Constitution 2 + 2 = 5.

Posted by: a6z | Feb 21, 2016 11:57:22 PM

The left's concern for state decisis is well known. Gay marriage and abortion rights are The Law, but Citizens United and Heller are fair game.

Posted by: Douglas Levene | Feb 20, 2016 7:18:15 PM

Bottom line, Republicans have the votes to vote down any nominee if they deem the person too liberal or really for any reason. But, they cannot even allow that. Before Obama nominated anyone, a day after Scalia died, the official line was NO ONE. That's hard ball. Hey, maybe it's impressive hardball. Own it though. Can't do it. Have to try to spin. Kinda sad.

Posted by: Joe | Feb 20, 2016 1:09:21 PM

Alito received a vote because the Democrats as a whole did not as a unit filibuster him. They had the votes. Takes forty-one of the full Senate to filibuster. Alito in the end received forty-two negative votes. But, only 24 Democrats voted for the "filibuster" that everyone knew beforehand would fail.

So, yes, just like Alito. Democrats didn't say Bush shouldn't nominate anyone. They didn't say no hearings. They didn't as a unit filibuster. There are loads of votes that are for show that everyone know will fail. Not "every vote." Democrats let the process play out, even though they had the votes -- and some really wanted them to filibuster -- to stop it. Republicans can too and STILL vote against the nominee.

Both sides filibustered lower court judges. The Supreme Court, however, is special. It would be a new thing to block a Supreme Court justice for as long as the Republicans wish to do so -- the last example apparently was back in the days of accident President Tyler!

Bork was "shot down" by an up and down vote. He was confirmed in 1982, before the 1986 elections. But, if you want to compare the two fine. He had an UP AND DOWN vote. He had hearings etc. Roberts was CONFIRMED. Republicans now don't even want a nomination. They have the votes to reject a nominee, but still can't allow it.

What did the Democrats get in "compensation" of Thomas for Marshall? Alito voted differently than O'Connor on multiple key issues. What "compensation" did the Democrats receive? But, yes, that would be a fair argument. If the Republicans wanted something like that to confirm the nominee, I can see them suggesting it. Be a lot better than making stuff up about "precedents" for Presidents not nominating people in election years.

Posted by: Joe | Feb 20, 2016 1:06:40 PM

"Just like for Alito" is misleading because it looks to the outcome rather than to the goal that Schumer, Obama, and most Ds supported. They voted to filibuster. The only reason Alito got a vote was because the other side had more votes. The fact that Schumer/Obama/most Ds got out-voted does not relieve them of having taken that position.

If losing an attempt means that one is not liable for the attempt, then we can say that about every vote. "My congressman voted against helping fund X." "Well, but his side lost, so it got funded anyway."

Further, scheduling hearings turns on majority control, while filibusters are a minority tool. We don't have a perfect comparison, in that both SCOTUS openings under Bush happened when the GOP had a Senate majority. But when the Democrats had a majority, in both 2001-02 and in 2007-08, many circuit nominees were left hanging with no vote and some with no hearings. Some who were held up got in in 2003 only because the GOP took the Senate, or they would have been left waiting. Others got hearings only to get filibustered. Some 07-08 nominees got left hanging when the term ended.

As for Srinivasan's support for the DC Circuit -- and for that being just two years ago rather than 15 as with Alito -- the same was true for Roberts and his DC Circuit confirmation, and Bork was unanimously confirmed just 4 or 5 years before he was shot down.

The bottom line is that both sides are conveniently changing standards about deserving votes, based on when they've had the Presidency or the Senate, and neither side is pure. Is McConnell switching roles? Sure. Is Obama? Sure. His "regret" about the Alito filibuster was a s start. But he'd have to go a lot further before he can expect anyone to unilaterally disarm and go as far as to vote for his nominee, when he personally, and those he allied with, played hardball.

Bush started out with the peace offering of the Gregory and Parker nods, and later re-nominated Helene White, leftover from Clinton.

Maybe Obama should at least offer to put Estrada on the DC Circuit if there's a resulting opening from Srinavasan or Millett or Garland. That wouldn't totally compensate for the massive swing of a SCOTUS spot, but it'd at least be something.

Posted by: Jack | Feb 20, 2016 12:21:45 AM

The "dipsticks" go up the the Majority Leader. A senator from Alaska got in trouble for even suggesting maybe hearings. Republicans left and right are saying there should be an election first. This might be right, it might be wrong. But, at least admit they are saying it.

Why is there a need for a "shutdown" before he picks someone like Judge Srinivasan, who Republicans like Ted Cruz praised two years ago before voting unanimously for him (not fifteen or so years before like Alito a couple presidents ago; when Obama nominated him two years ago)?

If they oppose the person, have a hearing and an up/down vote. Just like for Alito. The link shows how Sen. Schumer did not take a "diametrically opposed" position than he is taking now. He said not to vote for an Alito. Not to block even a hearing and say "no" even before you even hear the person offered.

If Goodwin Liu is nominated, Republicans can have hearings and and up/down vote. Why is that so hard?

Posted by: Joe | Feb 19, 2016 5:48:59 PM

Yes, really, Joe. "Mainstream" meant nothing more (or less) than "agrees with me"; Schumer said, fundamentally, the Senate wasn't going to confirm any nominees that didn't tow the Democratic line. While I realize that there are dipsticks like Hugh Hewitt calling for a blockade of any nominee, you can't possibly think that were Obama to nominate, say, Paul Clement, that he wouldn't be confirmed. But—c'mon. Really? The talk of a blanket shutdown represents nothing more than an acknowledgement of what kind of nominee Obama is likely to send.

Posted by: Simon | Feb 18, 2016 1:45:03 PM

"Charles Schumer is only the most infamous example."

Not really. http://talkingpointsmemo.com/edblog/lol-has-anyone-looked-at-what-schumer-actually-said

Posted by: Joe | Feb 18, 2016 1:02:55 PM

I'm not sure that I agree with the assumption that "[g]iven that the Roberts Court has been heavily criticized in its first decade for 'changing the law' in a conservative direction, it would be somewhat awkward for those critics now to insist on an even sharper turn in the opposite direction." Democrats are now taking a position diametrically opposed to the one that they placed on the record a decade ago in regard to the Senate's obligations with regard to confirmation—Charles Schumer is only the most infamous example. Shame has not constrained them in regard to process, so why would it constrain them in regard to substance?

Posted by: Simon | Feb 18, 2016 12:51:20 PM

Rick Hasen in his new book points to various examples where the Supreme Court still protects the media or some sort of media related function as compared to merely a "printing press" as a machine. He even cites how SCOTUS itself favors the media in providing press passes and the like.

The debate is interesting but one is led to wonder if this means every state press immunity law that singles out the press or some investigatory function is unconstitutional for burdening due process of law (compulsory process etc.), favoring some uses of a "printing press" over other (1A problem) or some other reason.

Tricky. I still think there is a good reason to treat for profit business corporations with special privileges from the state differently in some ways here than media (as an institution or function), non-profits, advocacy groups in corporate form, religious groups in corporate form (if tricky if for-profit with negative effects on third parties) etc.

Posted by: Joe | Feb 18, 2016 10:49:34 AM

For what it's worth, while I agree that state statutes regulating independent expenditures are the most likely vehicle for narrowing or overruling Citizens United, note that the second step of FEC regulations is complicated by the general dysfunction of the FEC --- as a 6 member Commission, the only way it is going to adopt new regulations is if (a) a Republican agrees or (b) a Democratic President decides to violate the longstanding political norm and nominate at least one "independent" to the Commission and a Democratic Senate confirms. (The statutory requirement is only that no more than three Commissioners be members of the same party, not that there be three from each major party.) I suspect a hypothetical President Sanders would be the most likely to try that, given both the prominence he has given to overruling CU and his own longtime status as an independent in Congress.

Consider a different hypothetical, however: what happens if --- presumably after some sort of fair notice in the press and the Federal Register --- a Democratic Attorney General files suit to enjoin a voting change by a (formerly) covered jurisdiction for failure to seek VRA preclearance? The three-judge court is bound (by Shelby County) to hold that Section 5 cannot be constitutionally applied to a jurisdiction covered only because of the current Section 4 coverage formula, but could the Supreme Court reverse?

It would certainly seem unfair to issue an injunction in such a case, but the VRA is something that there is almost as strong support for among Democratic partisans and is, unlike the FEC, entirely within the control of DOJ to enforce...

Posted by: Russell | Feb 18, 2016 10:23:51 AM

"corporations just don't air their own ads in support of or opposition to candidates very often"

The corporations known as "newspapers" do this all the time. What else is an editorial endorsement?

There's an argument that they're specially protected by the 1st amendment, but it seems to me that the Supreme court has largely rejected that view, in favor of the idea that the "press" referred to in the 1st amendment is the printing press, not the media who use it.

Posted by: Brett Bellmore | Feb 18, 2016 8:09:10 AM

"What would "disregarding Citizen United" entail?"

A very good question. I think the most practicable and meaningful move would be to hold that the result in Speechnow v. FEC didn't follow from Citizens United, as the D.C. Circuit thought it did. A truly independent expenditure, one might reason, is less corrupting than contributions to a titularly independent PAC. And I think that may be right. Independent Hillary-bashing expenditures, like those in CU, are less likely to create a debt of loyalty on the part of her opponents than, e.g., contributions to the Jeb Bush-supporting PAC, which only exists to air ads that say nice things about Jeb and mean things about all his opponents, and which is filled with Jeb Bush associates. Purely independent expenditures are by far less consequential than contributions to independent PACs - corporations just don't air their own ads in support of or opposition to candidates very often - so overruling Speechnow while keeping CU would be a pretty huge deal and would really end most of the (putatively - I have no problem with CU myself) bad effects of CU.

Posted by: Asher Steinberg | Feb 17, 2016 6:40:51 PM

What would "disregarding Citizen United" entail?

The acceptance of requirements of certain types of corporations to only give funds to campaigns via special types of PACS? (media, non-profits and perhaps other corporations are tricky situations)

The acceptance of a more restrictive definition of "corruption"?


To be clear, foreign money (Alito is shaking his head up and down here) and disclaimer/disclosure laws and other types of campaign regulations have either been upheld or not addressed post-CU yet.

Posted by: Joe | Feb 17, 2016 5:52:45 PM

What would "disregarding Citizen United" entail?

The acceptance of requirements of certain types of corporations to only give funds to campaigns via special types of PACS? (media, non-profits and perhaps other corporations are tricky situations)

The acceptance of a more restrictive definition of "corruption"?


To be clear, foreign money (Alito is shaking his head up and down here) and disclaimer/disclosure laws and other types of campaign regulations have either been upheld or not addressed post-CU yet.

Posted by: Joe | Feb 17, 2016 5:52:44 PM

I think that CU would be overruled as soon as the Court was given a clean shot at it. Roberts's gradualism is not entirely, but largely, personal to Roberts, and Planned Parenthood was quite a different thing (half of the nation doesn't passionately support Citizens United, there aren't massive reliance interests, though there are some, and Citizens United is a lot younger than Roe was in 1991). I think the better analogy is Citizens United itself, which overruled pieces of McConnell shortly after McConnell was decided, due to a change in personnel. I think Heller is a much better candidate for narrowing on a majority-liberal Court, for the same sorts of reasons Roe was only narrowed; so are Gratz and Grutter, for very different reasons (liberal Justices can work with the existing doctrine to reach the results they want). The doctrinal developments in Parents Involved, Shelby County, and NFIB would be repudiated or narrowed in appropriate cases, but I don't see a clean path to overruling, except perhaps in the case of Parents Involved. Finally, I think Chevron is in serious risk of being narrowed to nothingness if a Republican appoints the next Justice, but not if a Democrat does.

Posted by: Asher Steinberg | Feb 17, 2016 12:13:46 PM

That's fair and likely. And its the type of incremental step that Richard referenced. (California enforces a law against independent expenditures in a California election. Gets to Supreme Court who takes into account the legislative determinations by California regarding corruption. Creates a playbook for the FEC to enact new regs enforcing independent expenditure bans which implements it during a Democratic administration.)

Posted by: A Non-E Mous | Feb 17, 2016 12:07:09 PM

I would think a state could do it too...

Posted by: Western Tradition Partnership | Feb 17, 2016 11:31:52 AM

My question: How does Citizens United get overruled? As I see it, there's no private right of action to enforce the provisions in Citizens United. So it would take an administration (presumably a Democratic administration) saying that it plans to enforce independent expenditure limits against a corporation despite Citizens United clearly saying it's unconstitutional. I can't think of a 20th Century precedent that mirrors that -- executive branch enforcing law ruled clearly unconstitutional and Supreme Court overruling its previous precedent.

Posted by: A Non-E Mous | Feb 17, 2016 10:47:54 AM

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