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.