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Tuesday, April 05, 2022

Personal or Impersonal Precedent?

Our co-blogger Richard Re has a new article coming out in the Harvard Law Review on "Personal Precedent at the Supreme Court." Here is the Abstract:

Personal precedent is a judge’s presumptive adherence to her own previously expressed views of the law. This essay shows that personal precedent both does and should play a central role in Supreme Court practice. For example, personal precedent simultaneously underlies and cabins institutional precedent—as vividly illustrated in the now-pending abortion case Dobbs v. Jackson Women’s Health. Further, the justices’ use of personal precedent is largely inevitable, as well as beneficial in many cases. Still, the justices should manage or reform their use of personal precedent, including by limiting its creation. Finally, and most fundamentally, personal precedent challenges conventional theories of legality. Though typically excluded from the law, personal precedent may actually be its building block.

I want to highlight Richard's piece because there is a significant counterexample in my new book. As a circuit judge, Bushrod Washington held that the Bankruptcy Clause of Article One vested exclusive authority over that subject in Congress. But when the issue came before the Supreme Court, he wrote an opinion upholding the constitutionality of prospective state bankruptcy laws. He explained this by saying that he still thought his circuit opinion was sound, but that subsequent Supreme Court precedent had rejected his view.

Frankly, I think that we see too little of this deference today. In other words, the Justices tend to emphasize personal consistency at the expense of collective consistency. But the right balance is not easy to strike.

Posted by Gerard Magliocca on April 5, 2022 at 09:18 AM | Permalink


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