How judges overrule: speech act theory and the doctrine of stare decisis.

• Author: Dunn, Pintip Hompluem

Judges are "liars." (1) They "routinely engage in delusion." (2) They occupy a paradoxical position in this world, one in which their function requires them to make law, while their legitimacy depends on the fiction that they interpret law. (3) It is a strange fiction, but it is a necessary one. The legitimacy of the judicial system requires that the rule of law be above the whims of the individual personalities who happen to occupy positions on the Supreme Court at any given time. Rather, the rule of law must be grounded in objective analysis and immutable logic, reasoning that does not change with the changing of personnel. Otherwise, there would be no reason to accept the decisions of the Court as the governing framework for our society.

Judges sustain the fiction that they interpret law, but never create it, by adhering to the doctrine of stare decisis. Stare decisis states that judicial decisionmaking should adhere to precedent. Precedent provides a source external to the judges' individual opinions that legitimizes their reasoning, supplying ready evidence that judicial decisions are based on more than individual whim. After all, there is a certain amount of security in trusting precedent. Assuming that judges in a series of decisions have conducted independent analyses to confirm their predecessors' views, and that such a series comprises a collective judgment, precedent should be more trustworthy than an individual judge's opinion. (4)

But on occasion, judges depart from precedent, (5) and when they do, the fiction of interpretation begins to fall apart. After all, when judges overrule a previous decision, they do more than disagree with that decision; they assert an individual position and reject the external substantiation of their opinion.

How, then, can judges maintain their legitimacy when they overrule? This Note attempts to provide an answer by looking at the doctrine of stare decisis through the framework of J.L. Austin's speech act theory. Specifically, this Note argues that Austin's theory allows us to view the act of ruling as a discrete performative utterance that requires certain conditions to be fulfilled before it can function properly. As an atypical application of the general act of ruling, the act of overruling requires its own set of conditions before it can achieve legal force. This Note identifies and explores those conditions.

Part I describes J.L. Austin's speech act theory and, in particular, the constative and performative aspects of speech. Part II argues that while judges enact the constative fallacy, pretending that they are interpreting rather than creating the law, they execute an explicit performative utterance every time they make a ruling. In order for the ruling to have force, however, several felicity conditions must be fulfilled, among them the legitimacy of the Court in making the ruling. In Parts III-V, I examine the ways in which the Court meets this challenge.

In conducting my analysis, I examine cases from the last three decades in which the Supreme Court has overruled an earlier constitutional case. (6) To generate this list, I use the thirty-three cases listed in the majority opinion in Payne v. Tennessee to denote constitutional decisions the Supreme Court overruled in the two decades from 1971 to 1991. (7) In addition, to span the years 1991 to 2002, I use the list of overruled cases contained in The Supreme Court Compendium (8) and the Congressional Research Service's Constitution of the United States of America: Analysis and Interpretation. (9)

This sample set includes only those cases that overrule a previous constitutional decision. The doctrine of stare decisis operates under slightly different principles when the case involves statutory construction or procedural rules. Judges and academics have viewed cases turning on statutory construction as more constrained by precedent than cases of constitutional adjudication, (10) while they have viewed cases focusing on procedural rules as less constrained. (11)

1. SPEECH ACT THEORY

   In the 1960s, a group of British language philosophers, led by J.L. Austin, developed a framework for understanding the way language is used, which they called speech act theory. (12) This theory "treats an utterance as an act performed by a speaker in a context with respect to an addressee." (13) In his William James Lectures, which later became the book How To Do Things with Words, Austin sought to revise this view by exploring the many other functions of speech acts. (14)

   Austin's work identifies two general categories of speech acts-constative speech acts and performative speech acts. Constative speech acts are sentences that describe an existing state of the world. They are factual statements such as "The grass is green," opinions such as "I like your sweater," and thoughts such as "I think the sun is shining today." Each of these statements purports to describe something--material objects in the world, feelings, thoughts--and has an external referent. In other words, the substantive content of the statement exists outside the utterance of the words themselves, if not physically ("grass"), then as concepts--as thoughts or feelings. These statements thus have a truth value--they can be deemed true or false. (15)

   In contrast, performative speech acts conflate the act of doing with the act of saying; saying the statement performs the action referred to in the statement. Examples include "I promise to tell the truth," "I bet you ten dollars," and "I hereby pronounce you husband and wife." Thus, when one says, "I promise," one not only says that one promises but one also creates the act of promising. (16) Similarly, when one says, "I bet," one is performing the act of betting, and when one says, "I pronounce you husband and wife," one creates the legal act of marriage--given that one has the authority to do so. Performative speech acts do not have a truth value. Since the act of uttering the statement creates the referent, there is no external referent against which to measure the truth of the utterance.

   As the last example suggests, however, something can go wrong in the utterance. Even within this category of performative utterances, the act of saying words alone is not enough to create the action. Obviously, children who are playacting a marriage cannot create the act of marriage just by uttering the right words. We do not say that the playacting child's statement is false, for the child is not lying or issuing a misstatement. Rather, we would say that the statement is void, or as Austin says, "[u]nhappy." (17)

   Austin identifies two sets of general appropriateness conditions, which he calls "felicity conditions," that must be fulfilled in order for the "happy" functioning of the performative speech act. (18) The first set includes three conditions required for the action to be successfully performed: (1) an accepted conventional procedure must exist to give meaning to the utterance, (2) the person and circumstances must be appropriate for the conventional procedure, and (3) the procedure must be executed correctly and completely. (19) Thus, in order for the pronouncement of husband and wife to have legally binding force (i.e., in order for an action to be performed with the utterance of the words), certain conditions must be fulfilled. The person making the pronouncement must have legal authority to do so (conditions (1) and (2)), and must not say the wrong names in the ceremony (condition (3)). The person must also pronounce the words over two people who are eligible for marriage; they cannot, for instance, have a close family relationship with one another or currently have another spouse (condition (2)).

   The second set of felicity conditions includes two additional requirements for the utterance to succeed. The two conditions are: (4) if the procedure is designed for the participants to have a certain intent or state of mind, the participants must have such feelings or thoughts; and (5) the participants must actually conduct themselves in accordance with said feelings or thoughts. (20) We can easily imagine a person who promises but never intends to keep the promise (condition (4)), or a person who never follows through on his promise (condition (5)). In this case, the promise is not void; it is given in bad intention and may be misleading, but the statement still performs the act of promising. (21) If the participants fail to abide by either of these conditions, the utterance is "abused," or rather, the action is performed but is insincere.

   In addition to these five general conditions, Austin touches on other ways in which performative utterances can go wrong. For example, a performative speech act can be uttered under duress or jokingly or in a poem. (22) It can also be misheard or misunderstood. (23) However they "go wrong," these felicity conditions are of immense importance: The violation of one of them is enough to render the entire utterance devoid of performative force.

   In exploring these conditions, however, Austin finds that such felicity conditions are not unique to performative utterances. Something can also "go wrong" in constative utterances. For example, the statement, "The King of France is bald," is neither true nor false. It can be more accurately said to be null or void, as the thing that it presupposes--the existence of a king in France--does not exist. The statement is thus "not about anything." (24) In addition, every constative statement can be said to be performing an action with its utterance--the act of stating. (25) Because the act of stating is really not so very different from the act of doing, Austin suggests that there may be less of a distinction between the two categories than he originally posited.

   Likewise, Austin finds that performative utterances may have some very constative qualities. For example, although they do not have a truth value, performative utterances sometimes...