MOSTLY SETTLED, BUT RIGHT FOR NOW.

• Author: Lain, Corinna Barrett
• Position: Book review

SETTLED VERSUS RIGHT: A THEORY OF PRECEDENT. By Randy J. Kozel. (1) Cambridge University Press. 2017. PP. x + 180. $99.99 (hardcover), $34.99 (paper).

Randy Kozel's book, Settled Versus Right: A Theory of Precedent, is a laudable effort to make the law more stable, more cohesive, more impersonal--to show that "legal rules can endure. . . even as individual justices come and go" (pp. 18, 40). (3) The core of the contribution is a proposed doctrine of stare decisis that disentangles deference to precedent from the interpretive methodologies that led to the precedent in the first place, and that so often determine the amount of deference a decision gets--a doctrine that aims to take disputes over interpretive methodology out of the stare decisis equation. Kozel's book is thoughtful and coherent, meticulously making the case for why we need a better theory of precedent and what it ought to look like, while addressing counter-arguments and complexities as they arise along the way. The writing is crisp and clear. The case is persuasive. Settled Versus Right is an unequivocal success within its domain.

Importantly, that domain is doctrinal. Kozel's theory of precedent aims to effectuate change within the four corners of the law, and this is just as one might expect--as Kozel himself puts the point, "Stare decisis is, at base, a legal doctrine" (p. 171). It is a set of rules and principles designed to guide the Justices' decisionmaking as to when to defer to precedent even when they think it is wrong. But what happens when we add decisionmaking factors that operate outside of legal doctrine into the mix?

In this short essay, I focus on two: the Justices' policy preferences and the extra-legal context in which cases are decided. The first--the Justices' policy preferences--is clearly within the realm of influences that Kozel aims to minimize (and in a perfect world, prevent). Time and again, Kozel extols the virtues of law over the proclivities of individuals, the importance of enduring principles and precepts over the methodological and normative commitments that vary from judge to judge (pp. 27,36-42, 45-49, 98-99, 103-106, 135, 175-176). These policy preferences operate in and outside of doctrine. They manifest in the Justices' interpretive methodologies, driving the approach to doctrinal decisionmaking that the Justices find attractive, but also predate those methodologies and influence judicial decisionmaking in ways not fully captured in the formal operation of the law.

The second factor--the extra-legal context in which Justices operate--is more clearly non-doctrinal, although as Kozel recognizes, some interpretive methodologies explicitly recognize larger societal change as a doctrinally relevant consideration (pp. 63-69). My interest in extra-legal context is broader than that; my interest is the influence of extra-legal context on the Justices' decisionmaking, whether or not interpretive methodologies recognize that sort of influence as legitimate (or even recognize it at all). In short, my interest is the realm of constitutional reality, as opposed to constitutional law.

In the discussion that follows, I first explain why these non-doctrinal decisionmaking factors matter in a conversation about stare decisis, and then explore how they might play out in the doctrine if Kozel had his way. The point is to consider how Kozel's theory of precedent might work in practice as well as theory--that is, to see how it might work beyond the strictly legal domain. As a purely doctrinal project. Settled Versus Right naturally assumes that if we fix the doctrine, we'll fix the decisionmaking. I'm not convinced that is true, not when non-doctrinal factors like policy preferences and extra-legal context influence the Justices' decisionmaking too. The best a theory of precedent can do, I submit, is to minimize the most corrosive effects of these non-doctrinal influences--the discarding of precedent based on nothing more than a change in the majority Justices' views--while accommodating the inevitable evolution of the law that comes with the passage of time. By this measure, Kozel's proposed doctrine fares remarkably well, limiting the avenues by which non-doctrinal policy preferences might find expression while leaving room for the law of stare decisis to respond to changes in extra-legal context over time. To see what I mean requires a closer look at how these non-doctrinal influences work in the first place, starting with the Justices' policy preferences.

1. THE JUSTICES' POLICY PREFERENCES

   On several occasions. Kozel cites Payne v. Tennessee (4) for the sort of Supreme Court decisionmaking that he hopes to prevent with his theory of precedent (pp. 4, 35, 124-125), and the case works well for highlighting the influence of non-doctrinal policy preferences too. Payne is the 1991 decision that held that the Eighth Amendment does not bar the admission of victim impact evidence in the penalty phase of a capital trial. (5) In so doing, it overruled not one decision, but two. In Booth v. Maryland, decided in 1987, the Supreme Court held that the Eighth Amendment barred the introduction of victim impact statements, in part because those statements served only to inflame passions, and in part because those statements introduced an element of arbitrariness into death sentencing, allowing for the imposition of death based on how beloved a victim was, or, worse yet, how well the victim's family could express grief. (6) Two years later, in 1989's South Carolina v. Gathers, the Court followed Booth and extended its reach to prosecutorial comments relating to victim impact evidence as well. (7) Payne wiped out both decisions in one fell swoop, famously stating that "stare decisis is not an inexorable command," (8) and establishing itself as ground zero for the sort of instability in the stare decisis doctrine that makes Kozel's project so worthwhile today.

   As to what had changed in the intervening four years, the answer was twofold, and their names were Brennan and Powell. Both Justices had been part of the Booth majority and both had retired by 1990, sending Justices Souter and Kennedy to the bench in their stead and shifting the balance on the Supreme Court. In a stinging dissent, Justice Marshall called out the result in Payne for what it was, stating:

   Power, not reason, is the new currency of this Court's decisionmaking .... Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did... There is nothing new in the majority's discussion of the supposed deficiencies in Booth and Gathers. Every one of the arguments made by the majority [today] can be found in the dissenting opinions filed in those two cases, and, as I show in the margin, each argument was convincingly answered.... (9) It is tempting to say that the dissent was just being the dissent, but what Justice Marshall wrote was true--neither the law nor the factual understandings underlying Booth and Gathers had changed over the previous four years. None of the arguments were new. Indeed, not even a shift in the predominant interpretive methodology on the Court can explain the result in Payne. The majority's opinion wasn't about original meaning, or original intent, or a reading of constitutional text; it was about fairness through and through. A capital trial is all about the defendant, the majority reasoned; it ought to be about the victim too. (10) Indeed, in Payne, Justice Scalia wrote separately to note that this keen sense of fairness had "found voice in a nationwide 'victims' rights' movement" that deserved respect lest it "diminish respect for the courts and for law itself" (11)--quite the statement given his disdain for constitutional decisionmaking that considered political mobilization in a different, but nearly contemporaneous context. (12)

   If Payne teaches anything, it is that the Justices' policy preferences will, in practice, impact the Court's fidelity to precedent even when interpretive methodologies provide no cover for those views. Indeed, as Fred Schauer's essay in this volume notes, empirical evidence has long shown this to be true. (13) Non-doctrinal policy preferences impact the Justices' doctrinal decisionmaking, and the doctrine of stare decisis is no exception to that rule.

   Two further illustrations round out the point, each offering a slightly different insight. The first is Dickerson v. United States, the 2000 decision that ostensibly reaffirmed the constitutional legitimacy of Miranda v. Arizona. (14) On several occasions, Kozel cites Dickerson as an example of the Justices properly deferring to precedent (pp. 35, 79-80, 118), and this is readily understandable--the majority in Dickerson explicitly declined to overrule Miranda with the statement, "Whether or not this Court would agree with Miranda's reasoning and its rule in the first instance, stare decisis weighs heavily against overruling it now." (13)

   But the case is not the star of stare decisis that it seems. Chief Justice Rehnquist, who authored the opinion in Dickerson, had been undermining Miranda's constitutional legitimacy for years; (16) indeed, he had written a DOJ memo condemning the decision before joining the bench, and may well have written a second DOJ memo opining that Miranda warnings "are not themselves constitutional absolutes" (7)--the same position he would later take as a Justice and that, ironically, would be the basis for defending the statute that the Supreme Court would strike down in Dickerson. Why, then, would Chief Justice Rehnquist author an opinion rejecting a position that he himself had taken? Why would he lead the charge to affirm the constitutional legitimacy of Miranda when he had been undermining it for years?

   The answer is necessarily speculative, but it is worth noting that the vote in Dickerson was 7-2, and would have been a solid 6-3 even if Chief Justice...