THE EMPEROR’S STARE DECISIS

On Wednesday of last week, my  co-blogger Mike Dorf at Dorf on Law wrote a typically thoughtful post on the difficulties originalists (and others) have when determining proper standards for the Court to use when deciding whether to overturn prior cases. One of his conclusions, that “originalist acceptance of stare decisis very substantially constrains the role of original meaning in determining outcomes, even accepting the originalists’ own premises,” is I think exactly right. But Mike did not ask, nor try to answer, what I think is an antecedent question about the role of precedent in the Supreme Court: Does the doctrine exist at all apart from stylistic rhetoric that pops up from time to time in Supreme Court opinions? I think the answer to that question is important and obvious–no.

It is true that when the Court is asked to explicitly overrule a case, and the Justices want to, they will usually spend some time discussing a bunch of factors like reliance on the prior case or whether the original decision has been undermined by later cases before announcing the reversal. The dissent (there are almost always dissents in such cases) will then claim there were no “special reasons” for overturning the prior decision. These discussions are almost always simply after-the-fact rationalizations for conclusions reached on other grounds.

The reality, on the ground, is that whether by explicit reversals, or through slicing and dicing, or through subtle and clever factual and legal distinctions, the Court has reversed itself in virtually every major category of litigated constitutional law based on the values of the Justices sitting at the time. In my account below, I leave out the 4th through 8th Amendments because I am not an expert in those areas. This post is far more descriptive than I usually write, but at the end I’ll make what I think are a few important substantive points and then pose a few questions. Nothing in this post suggests that lower court judges don’t take vertical precedent seriously. As usual, I am writing just about the Supreme Court.

In 1869, the Court ruled that Congress could not make paper money legal tender in a historic decision that altered both our economy and the rationale of the landmark decision McCullouch v. Maryland. Just one year later, with two new Justices, the Court reversed itself for no other reason than the presence of those two new Justices. These Legal Tender Cases, as they are now called, were the Roe v. Wade or Citizens United  decisions of their day.

In 1939, the Supreme Court held that the Second Amendment only applied to military style weapons. We all know what happened to that holding with Justice Scalia distorting it completely to reach the exact opposite conclusion in District of Columbia v. Heller,-that the 2nd Amendment applies to weapons in “common use.”

The First Amendment’s clear and present danger test for incitement was later changed to Brandenburg’s two-part test which is whether the speech at issue was intended to incite unlawful action and is/was likely to do so. Commercial speech was formally unprotected by the Court for most of our history until the 1970’s and now striking down commercial laws based on the freedom of speech is the new Lochner and happens regularly. The Court’s campaign finance laws have been all over the place with, for example, the Court first distinguishing between public interest corporations and for-profit corporations, but no longer. Last term, the Court overruled a unanimous 1977 decision allowing states to impose some union fees on public employees who don’t join unions. The list of the free speech cases that have been dramatically altered over the years could fill the rest of this post.

From 1791-1963, the First Amendment did not require religious exemptions from generally applicable laws. From 1963-1990, the Court held such exemptions were required in some circumstances, then the Court went back to the old way, and I fully expect this back and forth to go back and forth again. The Establishment Clause of the First Amendment didn’t limit aid to religious schools, then it prohibited most aid, and now it allows all such aid including vouchers as long as similar assistance is also provided to non-religious schools.

The Court’s commerce clause jurisprudence is of course infamous for its backs and forths, both as applied to federal regulations of businesses and regulations of state governments. In Hammer v. Dagenhart, the Court refused to allow Congress to regulate child labor, but (thankfully) that decision was expressly overturned in United States v. Darby. Making sense of the Court’s recent commerce clause decisions from Lopez to NFIB is an impossible task, and the next case that raises these issues can go in almost any direction. In 1976, the Court held that state sovereignty limitations precluded Congress from regulating “traditional state functions,” but that decision was expressly overturned just a few years later in Garcia, which then was implicitly reversed in the anti-commandeering cases unless the law at issue is “generally applicable.”

In 1989, the Supreme Court held that the Eleventh Amendment does not bar federal question lawsuits for money damages against states by citizens of their own state (consistent with the text) or by citizens from other states (100% inconsistent with the text). Just a few years later, the Justices (some different ones of course) changed their mind and ruled that the Eleventh Amendment prohibited all such suits. Nothing changed but the values of the new Justices.

In Metro Broadcasting v. FCC, the Court applied intermediate scrutiny to federal affirmative action laws. Just a few years later, the Court overruled that case and held that strict scrutiny applied to such laws. Nothing had changed but the personnel on the Court.

People often point to the Court’s decision in Planned Parenthood  v. Casey to show how stare decisis concerns led the Court to affirm, not overrule Roe. Maybe. But in that very decision the Court substantially weakened judicial protection for abortion rights and also expressly overturned important post-Roe cases without even mentioning the stare decisis factors the Court set forth just a few pages earlier.

I could go on and on but my guess is the reader’s patience will be severely tested. So here are a few substantive points and questions.

The cases listed above are not minor or peripheral areas of constitutional law. In cases involving abortion, affirmative action, free speech, commerce clause, church/state, gun rights and sovereign immunity, among many, many others, the Court has reversed itself dramatically over the years. That reality should weaken any argument that Segall has left out “all” the many cases the Court has not reversed. Where the Justices really care, on the most pressing, most important questions, stare decisis has played little or no substantive role.

So why can’t we admit it? Thoughtful and serious scholars of all political stripes have tried hard to devise standards, guidelines, criteria, and tests for applying precedent for the Justices. Like virtually all theoretical pre-commitments, however, those factors won’t matter to the Justices who history has shown time and time and time again will do what they want to do today and not worry much about yesterday. The Justices will display some rhetorical angst when they reverse cases but this is just a show, and a huge waste of time and resources.

So here’s a question. Would we better off just admitting the truth that the Court will reverse itself if it feels the substantive issue is more important than pretending that precedent matters? Or is it important to keep up the pretense that stare decisis matters either so the Justices will at some subconscious level be a little more restrained (though not much) or because if we allow the Court to decide each issue anew without the pretense that precedent matters the rule of law will be damaged? My preference is transparency above all else but others may feel differently.

Finally, there will be major push back on my descriptive account from law professors (though not from most political scientists). There almost always is. But I would ask the careful reader to look at the cases cited above. Of course, there are hundreds of decisions the Court has never revisited but that is because there was no social pressure to do so. If precedent only matters when no one or few people feel strongly it should be changed, then does it really matter all?

This article is cross-posted on “Dorf on Law”

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