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Monday, October 07, 2019

Stare Decisis for Decisions Prior to Confirmation

To what extent does a Justice consider a prior holding binding when he or she dissented in  that prior case? This is a question I've been pondering as we begin the new Term. 

When we think of stare decisis, we usually look at whether the Court should adhere to a decision or not. In my research and writing on the Marshall Court, you see many examples of a Justice saying something like this: "I think that the Constitution means X. But the Court held to the contrary in case Y. So I have to say Y."

I'm hard pressed to think of a recent high-profile example of this sort of deference. That's especially true, though, when the Justice in question participated in the case and lost. For instance, I doubt that Justice Breyer or Justice Ginsburg will apply Heller. My sense is that they will just continue to dissent from that holding. They probably would not do the same for a case that preceded their tenure (or at least far less often). They probably do feel a stronger pull to follow a holding by the Court issued when they were not on the Court.

Take the upcoming abortion case as another example. The statute in question is hard to distinguish from the one invalidated three years ago in Hellerstedt. Chief Justice Roberts dissented in that case. One way of looking at the new case is that he will just stick with his prior position and, in effect, vote ti overrule Hellerstedt. Indeed, when I asked my students about this, they laughed at the thought that a Justice would refrain from trying to overrule a case from which they dissented if the opportunity presented itself. 

Now the fact that the Chief Justice voted for the stay in the abortion case could be a middle ground. The precedent is binding on preliminary matters, but not for the final disposition. Or maybe it suggests that he will accept stare decisis here. Who knows.

Posted by Gerard Magliocca on October 7, 2019 at 10:26 AM | Permalink


My experience clerking a thousand years ago was that judges and justices felt more pressure to be consistent with their own prior opinions, whether written in dissent or not, than to follow the court's rulings.

Posted by: Douglas Levene | Oct 10, 2019 8:21:58 AM

Neil Goldfarb,

Where did you find the phrase "right to serve in the militia" in the corpus linguistics or in any supreme court opinion before 2007?

Posted by: Cunning Linguistics | Oct 8, 2019 9:49:02 AM

I read Goldfarb's amicus in the N.Y. Pistol Club case. He is right that the Supreme Court should dismiss the case. He's also right that Heller is wrong. But his argument is wrong all the way around. It's a weird situation where both of his conclusions are correct, but his reasons for reaching those conclusions are...wrong.

Posted by: thegreatdisappointment | Oct 8, 2019 3:50:48 AM

Neil Goldfarb,

George Washington ordered a militia draft to put down the Whiskey Rebellion. People were forced to join the militia. If the second amendment was a right to serve in the militia (if militia service was voluntary, because rights are voluntary), then no one would've been forced to join the militia. But they were. Because there is no right not to join the militia.

Posted by: People were drafted into the militia in 1794 | Oct 8, 2019 2:57:55 AM

Regarding Heller, note that evidence from corpus linguistics (an interpretive tool endorsed by originalist gun-rights advocates Randy Barnett and Josh Blackman) suggests that Heller is wrong. And note further that although the gun-rights supporters are aware of the corpus evidence, they don’t challenge the conclusion that Heller is wrong.


Posted by: Neal Goldfarb | Oct 8, 2019 2:38:36 AM

Link in the last post doesn't work. (The blog included the period in the URL.) Here is the corrected link: https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1054&context=facpubs

Posted by: Bryan Gividen | Oct 7, 2019 4:33:10 PM

Prof. Alli Larsen at William & Mary has a good piece called "Perpetual Dissents" that addresses the topic (or at least an issue adjacent to it) in-depth. See https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1054&context=facpubs.

Posted by: Bryan Gividen | Oct 7, 2019 4:31:46 PM

I think Alleyne's a good and important example. In Gregg, if you look at the judgment line on the companion cases where the state lost, like Woodson v. North Carolina, it took Powell's vote to invalidate any of the sentencing schemes before the Court. As I've written here, Powell not only supplied the fifth vote in those cases, but records himself as saying in conference that he "accepted Furman as precedent," which he didn't even have to do as Furman lacked a majority opinion and Marks hadn't been decided yet. Other Furman dissenters wrote that they adhered to their views in Furman.


Posted by: Asher Steinberg | Oct 7, 2019 3:57:14 PM

Thanks for the correction--I fixed the typos. Pavan is a good example, but the fact that there are so few of them sort of proves my point, I think.

Posted by: Gerard | Oct 7, 2019 3:10:00 PM

I think there are many more examples than you think, but I'll mention just three that come to mind: Roberts' vote to summarily reverse in Pavan after dissenting in Obergefell (which none of the other Obergefell dissenters did), Breyer's supplying the fifth vote for the judgment in Alleyne even as he said he would overrule the precedent (Apprendi) on which the judgment was based and in which he dissented, and Powell's joining the Gregg plurality, which treated certain concurring opinions in Furman as binding, in the Court's first application of the Marks rule, and held certain death-sentencing schemes unconstitutional, though Powell dissented in Furman. Also, Hellerstedt is called Hellerstedt, not Hellerstein.

Posted by: Asher Steinberg | Oct 7, 2019 2:52:52 PM

The respectable author of the post, mentions, X and Y, but without really bringing and establishing a real and concrete case until the last bit of it. For, from the outside, it may seem that judges may deliver contradicting rulings. But, in order to assert it, one must establish, identical legal and factual configuration (until the last bit of it ) and then, clearly prove contradictions of such. For, slight different factual issue, or legal as well, may constitute a game changer for judges, or actually, different case. One needs to read reasoning, very carefully read it. One needs to read the whole opinion, the whole concurring or dissenting, in order to really establish such contradiction. It is not that simple with all due respect.

The respectable author bring Heller. But it may vary. From state to state. Such weapon or such weapon. Personal purposes or personal self defense V. collective one. Locked weapon, registered, concealed. Hell of sub issues, factual, and legal as such. Sometimes, time changes. Cultural, social or technological shifting may cause different stance of one judge. But it may be justified finally.Sometimes, it is simply different administration ruling, and deference is warranted. Yet, may look from the outside, as contradicting rulings.

I shall quote again from Trump v. Hawaii:

More fundamentally, plaintiffs and the dissent challenge the entry suspension based on their perception of its effectiveness and wisdom. They suggest that the policy is overbroad and does little to serve national security interests. But we cannot substitute our own assessment for the Executive’s predictive judgments on such matters, all of which “are delicate, complex, and involve large elements of prophecy.”


Posted by: El roam | Oct 7, 2019 11:51:03 AM

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