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Tuesday, March 24, 2020

Is “Stare Decisis … for Suckers”?

If you’re reading this, you’re probably trying to think about something ordinary during our extraordinarily trying times. In that spirit, I’d like to explore the question that’s the title of this post, using the Supreme Court’s recent ruling in Allen v. Cooper as my foil.

The trope that “stare decisis is for suckers” was popularized on the Strict Scrutiny podcast. (In fact, you can purchase Strict Scrutiny swag emblazoned with that slogan right now, thereby ensuring that at least someone will profit from the doctrine of stare decisis.) But the phrase is gaining wider attention. Earlier this month, for instance, it appeared in a dissenting opinion by Judge Smith. 

This week’s ruling in Allen v. Cooper offers a nice opportunity to think about whether stare decisis is really for suckers or, instead, is for everyone. In short, Allen extended precedent to hold that Congress had not validly abrogated state sovereign immunity by enacting the Copyright Remedy Clarification Act of 1990. As Professor and Strict Scrutiny co-host Leah Litman has already noted, “Justice Thomas writes separately in Allen v. Cooper to reject the idea that stare decisis demands a ‘special justification’ before overrruling precedent.” In other words, Thomas thinks that a precedent’s mere wrongness can suffice to break from the precedent—a position that seems a lot like “stare decisis is for suckers.”

The “suckers” phrase can be viewed as the latest expression of an old lament: stare decisis is mere rhetoric, not an actual constraint on the justices. So people who take it seriously—who fail to see the difference between the justices’ words and their actions—are dupes. True, Thomas’s dismissal of stare decisis’s binding force stood in contrast with Justice Kagan’s majority opinion, which professed allegiance to it. Yet Kagan herself has recently dissented (more than once) on the ground that the Court had overruled precedent without any “special justification.” So perhaps Kagan’s characteristic paean to stare decisis made it into a majority opinion only because a majority agreed with the outcome in any event. In other words, the contrast between Thomas’s and Kagan’s views on precedent may simply reflect the difference between candor and aspiration.

Further, Thomas’s wasn’t the only separate opinion. Justice Breyer also penned a concurrence in the judgment, joined by Justice Ginsburg. Consistent with his recent dissents emphasizing stare decisis, Breyer’s Allen opinion grandly bowed to precedent. But he also emphasized some important context: he had “consistently maintained” that a seminal ruling in this area—namely, Seminole Tribe—“went astray.” As recently as 2012, in fact, Breyer had joined Ginsburg in succinctly stating: “I remain of the view that Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100 (1996) (Souter, J., dissenting).” So it is hard to know what to make of Breyer’s late-breaking admission “that my longstanding view has not carried the day.” Is Breyer really bound by precedent, or just admitting that he doesn’t have the votes to overrule it?

Let me suggest another way of looking at Allen and, more broadly, at debates about stare decisis (or the lack thereof) in the Supreme Court. In a new draft paper, I suggest thinking about precedent as a permission, not a constraint. In other words, maybe precedent’s applicability does or should function not as a mandate to rule in a particular way, but rather as reassurance that a particular approach is lawful. The obvious response to this idea, borrowing from Court decisions, is that stare decisis does nothing unless it calls for a “special justification,” that is, some reason for overruling over and above the belief that the precedent came out the wrong way. But that claim is too quick.

First, precedent works as a shortcut by helping judges and justices decide cases quickly and lawfully by telling them that it is allowable to follow the path laid by past rulings. Most of the time, resource-strapped courts are disinterested in pursuing legal questions back to first principles. Instead, they are eager to decide cases lawfully and move on, mindful of the aphorism that justice delayed is justice denied. That commonsense dynamic will foster frequent adherence to precedent, even if it’s entirely non-binding.

Second, precedent operates as a shield by encouraging judges who have been critical of precedent to put aside their past views (whether publicly expressed or not) and start respecting stare decisis. After all, if it’s always permissible to follow precedent, then even the most vehement critic of a particular decision can hold her head high as she votes to follow it. Without a doctrine of precedent, by contrast, the jurist might have to declare a 180-degree shift in her considered views before she could change course.

These two points cast Allen and its opinions in a different light. The justices in the majority might have had varying degrees of confidence that the majority’s precedent-based analysis was correct. The case’s subject area is, after all, famously controversial and complicated, yielding disagreement among members of the left and right alike. But instead of going to first-principles, members of the majority could coalesce easily around a shared analysis and conclusion, without having to reinvent the jurisprudential wheel. Further, Justice Breyer seems to have taken advantage of precedent as a shield: even if he doesn’t have to follow case law, Breyer may see advantages in burying the hatchet when it comes to Seminole Tribe. The doctrine of precedent gives him a face-saving, indeed, honorable, way of doing so.

So even if precedent has no binding force—that is, even if it is purely permissive in nature—precedent can still do a lot of work. In other words, there is a way in which even a fairly hard-hearted cynic can care about stare decisis without being a sucker.


[This post originally suggested that the Strict Scrutiny podcast might have conceived of the "suckers" slogan, but I now understand that it predates the podcast.]

Posted by Richard M. Re on March 24, 2020 at 08:30 AM | Permalink


Really interesting thoughts and draft paper Richard. Your view describes the ways judges use the doctrine in a unique and (I think) descriptively accurate way. I had just a couple quick reactions.

First, you point to precedent's epistemic value as a shortcut to acceptable, or more likely accurate, legal answers. I agree. But isn't that a reason that following precedent should be mandatory, absent special justifications to deviate? It seems that judges can only mine the value of past decisions if they approach them with humility, admitting that those decisions are probably correct and should be followed unless there is some strong practical justification to change course (a position I take in this forthcoming article: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3520664). If following precedent is purely permissive, I doubt any judge will obtain much of that value from prior reasoning.

On your point that precedent may act as a shield, I think that's a very interesting idea often found in judicial rhetoric. It's akin to a judge jutting out their chin and claiming to bravely decide in ways contrary to their policy preferences, thereby proving their neutral decision maker bona fides. But I wonder if, more broadly, that kind of attitude actually encourages deciding everything based upon first principles, even if it might tear down more precedent and upend modern practices in the majority of cases.

Looking forward to seeing the draft in print sometime soon!

Posted by: Mike Gentithes | Mar 26, 2020 7:52:00 AM

My sense is that stare decisis arguments get almost* no purchase in the legal academy because pursuing theory absent constraints is a big part of the legal academic self-identity. It seems more academic to remove constraints and go back to first principles. Stare decisis arguments are all about existing constraints, though. They're the opposite of the value structure of academia, especially elite academia, so they are fashionably dismissed.

*The "almost" caveat is that stare decisis can become tactically desirable if you favor preexisting law to what a court may change the law to be. I hear a decent amount of that today, especially in the academic world: Some take umbrage at the courts not respecting stare decisis when their objection is not so much to whether stare decisis is respected but which decisions the courts have chosen not to respect.

Posted by: Orin Kerr | Mar 24, 2020 5:15:12 PM

Richard: I like these ideas. And I think they support what I wrote yesterday--everyone should have joined the majority opinion, save a few additional personal points of disagreement or jurisprudential preferences defeated.

Posted by: Howard Wasserman | Mar 24, 2020 1:03:04 PM

Does no one remember the Southern Appeal blog from 10-15 years ago?


Posted by: stan | Mar 24, 2020 11:47:20 AM

Interesting. But, there is no particular problem here ( in terms of precedents or Stare Decisis, distinguished from the substantive issue of copyrights and state immunity):

A precedent meant rather for guiding, not for binding necessarily. It is binding, only when there is total similarity in factual and legal terms between both cases. But, the latter is pretty rare. It does create reliability , certainty and uniformity, but, as guiding principals, not in advance, totally binding. Similarity, is not automatically implied.

Even Justice Thomas, recognizes it in fact, here I quote him ( in the current case):

" Here , adherence to our precedent is warranted because petitioners have not demonstrated that our decision in "Florida Prepaid" is incorrect, much less demonstrably erroneous "

But, what does it mean among others, incorrect or erroneous? Means that ( as in that case) that,it is correct for certain legal and factual configurations, yet, incorrect, for another new one, despite, prima facie similarity. And indeed, more quoting him (and contradicting himself in fact, and, by the way) here:

" In my view, we should opine on " only the case before us in light of the record before us "

So, on one hand relying on precedent, on the other, exercising ad hoc attitude. But, combined as explained , that is the right thing.

It is reasonable, to presume, that Stare Decisis should be more rigid, because simply of the significant implication it has. Yet, special arguments or reasoning, may overrule it.

Nothing here, is abnormal. On the contrary, guiding principles and jurisprudence, combined with ad hoc case by case careful observation, are doing it . That's it.


Posted by: El roam | Mar 24, 2020 10:10:56 AM

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