Mostly unconstitutional: the case against precedent revisited.

• Author: Lawson, Gary

In the American legal system, it is commonplace for actors to give varying degrees of legal weight to the decisions of prior actors. The generic name for this pervasive and familiar practice is the doctrine of precedent. (1) Although all legal actors must consider the extent to which they ought to follow the prior decisions of others, (2) the concept of precedent is associated most closely with the decision-making processes of judges. A court facing a legal problem must consider the weight, if any, that it will give to, inter alia, (1) prior executive or legislative decisions, (3) (2) decisions by courts situated above the deciding court in the judicial hierarchy (vertical precedent), (4) (3) decisions by courts situated at the same level as the deciding court in the judicial hierarchy (horizontal precedent), (5) and (4) decisions by courts or legal actors from foreign legal systems. (6) The consensus view in the modern American legal culture is that some form of precedent is "part of our understanding of what law is." (7)

In this short Article, I want to (re)examine one specific but important aspect of the doctrine of precedent: the weight that the Constitution requires or permits the United States Supreme Court to give to prior United States Supreme Court decisions in constitutional cases. Thus, I am putting aside for now all questions of vertical precedent, all issues of horizontal precedent at the district court and court of appeals levels (and across departments within the national government), all issues of precedent in cases involving statutory interpretation, and all problems unique to common law cases. The question remaining after these other issues are tabled is, how much weight is the Supreme Court obliged or permitted to give to its own prior interpretations of the Constitution? (8) Conventional wisdom, in keeping with the view that precedent is an essential part of our understanding of law itself, holds that the Court is permitted, though not necessarily obliged, to give considerable, though not necessarily conclusive, weight to its prior decisions. The standard formulation is that the Court should not reject prior decisions, even when a current majority believes them on balance to be mistaken, without some "special justification" (9) beyond the mere belief of error. (10)

Nearly fifteen years ago, I suggested that the Court, if it wants to conform to the Constitution, should never choose precedent over direct examination of constitutional meaning. (11) After considering the issue further, and digesting a decade and a half of criticism of my argument by the legal academy, (12) I want to change my conclusion (with apologies to Ford Prefect (13)) from "never" to "mostly never." It turns out to be a bit of an overstatement to claim that the Supreme Court should never rely on past decisions in preference to direct, unmediated examination of the Constitution. But only a bit.

In Part I of this Article, I will briefly recap the argument against precedent that I sketched in The Constitutional Case Against Precedent. (14) Although my purpose here is to refine that argument, I still think that the original argument is right in most particulars, and it still functions as a prima facie case against the use of precedent in constitutional interpretation. In Part II, I survey, hopefully more carefully than I did fifteen years ago, different possible grounds for the practice of precedent. One might choose to follow precedent because some controlling legal authority requires it, because it is useful for determining the right answer, or because it is easier and cheaper than figuring out the right answer from scratch. A full assessment of the constitutionality of precedent must independently consider each possible ground. In Part III, I will quickly dismiss the possibility (which very few people actually advance) that the Constitution or some other controlling legal source affirmatively commands the use of precedent in constitutional cases. In Part IV, which focuses on epistemological and consequentialist arguments for precedent, I argue that the Constitution only permits the use of precedent in constitutional cases in very limited circumstances. A court may properly use precedent if, but only if, the precedent is the best available evidence of the right answer to constitutional questions. In order to be good evidence of the right answer, a precedent must be the product of an honest, skilled effort that poses the right questions and tries to solve them through the right methods. It is theoretically possible that there could be some circumstances in which prior judicial decisions might qualify for weight under this standard, but it is inconceivable that those circumstances could hold for any significant subclass of judicial decisions, much less for judicial decisions as a class. Indeed, the best categorical case for precedent involves judicial deference to certain executive or legislative judgments in limited circumstances, though the case for any such deference requires some very strong assumptions that will not always be justified.

In sum, there is at best a very weak constitutional case for the doctrine of precedent, and it is at best a case for a very weak doctrine of precedent.

1. REVISITING THE CASE AGAINST PRECEDENT

   The federal Constitution grants to the federal courts one and only one power: "[t]he judicial Power of the United States." (15) Federal courts have the capacity to receive power to appoint inferior officers if Congress chooses to grant it, (16) and the chief justice personally has the power and duty to preside over presidential impeachment trials in the Senate, (17) but the only power actually granted to the federal courts as an institution is the judicial power. It is remarkably difficult to give a full account of the original meaning of the phrase "[t]he judicial Power," but fortunately the dispute focuses on the periphery, rather than the core. The central feature of the judicial power is clearly the power to decide cases according to governing law; (18) the question that divides scholars is what ancillary powers go along with the basic power to decide cases. (19)

   In order to decide cases in accordance with governing law, one must know what law governs. That inquiry requires interpretation of the relevant sources of law--which is why the power of law interpretation is a necessary concomitant of the judicial power, just as it is a necessary concomitant of the legislative and executive powers (20)--and also determination of which law governs in the case of conflict. In any given case, many different legal norms from many different sources--including constitutions, statutes, treaties, regulations, court decisions, traditional practices, and theories of justice--might potentially bear on the outcome. Depending on the legal system in place, any or all of these norms might legitimately claim the status of "law," and if they point in different directions, a court employing "[t]he judicial Power" must determine which sources take priority. As Justice John Marshall succinctly put it in Marbury v. Madison, "[i]f two laws conflict with each other, the courts must decide on the operation of each." (21) An essential, and inescapable, feature of the judicial power is the power and duty to resolve conflict-of-laws problems.

   The federal Constitution contains only one express conflict-of-laws provision, but it is a doozy. The Supremacy Clause declares:

   This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (22) This clause is a specific directive to prefer three named federal legal sources over any other legal sources, including state law sources, in the event of a conflict. The clause singles out state court judges for emphasis, but the basic conflict rule expressed in the first part of the clause is not limited to state court judges. By its terms, the Supremacy Clause speaks to all legal actors--federal and non-federal, judicial and non-judicial--and asserts the superiority of the Constitution, statutes, and treaties over competing sources of law. The Supremacy Clause conspicuously does not include "decisions by the United States Supreme Court" when naming the sources of law at the top of the legal food chain.

   So, right away the Constitution itself establishes a prima facie case against the use of precedent: if a prior judicial decision conflicts with the Constitution, a statute, or a treaty, the prior decision must give way. If even a state constitution cannot prevail over the federal Constitution, it is hard to see how the views of three to five (depending on the size of the Supreme Court) lawyers or hacks (depending on the composition of the Supreme Court) can do so.

   There is more. Within the set of legal trumps spelled out by the Supremacy Clause, there is an internal hierarchy. While the Supremacy Clause seems to place the Constitution, federal statutes, and treaties on the same legal plane, one can infer with a reasonable degree of confidence (23) that the Constitution is the ace of trumps and prevails in conflicts with statutes and treaties. (24) The inferential argument to this effect, based on a combination of the nature of written constitutions--the specific structure of the American Constitution, and the Oath Clauses (25)--is familiar from Marbury and will not be rehearsed here. (26) Thus, if the Constitution conflicts with a statute or treaty (including a statute or treaty that purports to place some other legal source, such as precedent, above the Constitution), the Constitution takes the trick.

   To see how these principles work, consider a hypothetical statute that flagrantly...