The Politics of Precedent on the US Supreme Court.

• Author: Poole, Bryce G.
• Position: Book review

THE POLITICS OF PRECEDENT ON THE U.S. SUPREME COURT. By Thomas G. Hansford & James F. Spriggs II. Princeton University Press. 2006. Pp. 155. $29.95.

The Politics of Precedent on the U.S. Supreme Court (1) is an ambitious work. The authors, Thomas G. Hansford, Assistant Professor of Political Science at the University of South Carolina, and James F. Spriggs II, Associate Professor of Political Science at the University of California-Davis, address a profound and important question: "Why and when will the U.S. Supreme Court alter the meaning of one of its precedents by ... interpreting it," positively or negatively? (2)

The authors begin from the reasonable premise that Supreme Court decisions are very important. The authors provide two reasons for the importance of the Court's decisions. First, those decisions effectuate a disposition of the case, determining which litigant prevails. Second, and more importantly, Supreme Court decisions have "far-reaching consequences" because they "alter[] the existing state of legal policy and ... help[] to structure the outcomes of future disputes" by conveying information about the potential consequences of future litigation, thus offering guidance to decision makers. (3) In other words, "Court opinions create precedents that are relevant for future disputes and thus shape the behavior of forward-thinking actors." (4) The Court's decisions influence lower courts, administrative agencies, legislatures, the media, and even private interest groups. When the Court modifies the meaning of a prior precedent, therefore, it changes the law--sometimes with sweeping consequences. (5) These consequences act as a catalyst for the authors' methodical study--an attempt to explain why and how the Supreme Court changes the law by interpreting prior precedents.

The authors are critical--albeit gently so--of much of the recent scholarship attempting to explain the development of the law. According to Hansford and Spriggs, "the literature on Supreme Court decision making is dominated by two competing paradigms." (6) The first is the "attitudinal" model, which proposes that "justices are primarily motivated by concerns about substantive policy outcomes." (7) That is, "the justices vote for the liberal or conservative outcome in a case exclusively as a function of their ideological predispositions." (8) The second perspective is the "legal" model, which posits that "the justices are motivated by a sense of duty or obligation to follow particular legal principles, rights, and norms." (9) In other words, the legal model "contends that judges are jurisprudentially oriented decision makers who respond to normatively relevant legal factors." (10)

According to the attitudinal model, the norm of stare decisis--the norm that courts should follow established precedent by treating like cases alike--is no more than a "cloak" to disguise the purely instrumental decision making of policy-oriented justices who make law according to their policy preferences. (11) Proponents of the legal model, on the other hand, argue that stare decisis acts as a constraint on judicial decision making, such that any new decision by the Court must follow its past decisions. (12) Hansford and Spriggs argue that these two paradigms leave "a significant gap in our understanding of the Court," (13) and so they propose a middle way:

[W]e argue that while precedent can operate as a constraint on the justices' decisions, it also represents an opportunity. It represents a constraint in that justices may respond to the need to legitimize their policy choices and thus gravitate toward some precedents rather than others. It represents an opportunity in the sense the justices can utilize precedent to constrain other actors, thereby promoting the outcomes they prefer. (14) According to Hansford and Spriggs, precedent can operate as a constraint because the Court must ensure the legitimacy of any new legal rule it crafts. Since "court decisions are not self-executing," the Court must rely on third parties to implement its policy preferences, and those third parties will be less likely to implement a new policy that is facially illegitimate. (15) Given the Court's need to legitimize its policies, "precedent can limit [its] flexibility or discretion. It does so by constraining the alternatives available to the [Court] to those which are legally defensible." (16) But precedent is also an opportunity because the Court can make a new rule and can claim that the new rule is based on precedent: "Since legitimacy encourages compliance, it enhances the power of courts and facilitates their ability to cause legal and political change." (17)

The interpretation of precedent is a powerful tool available to the Court. Broadly speaking, the Court has two options when interpreting a precedent: it may interpret a precedent positively or negatively. "Positive" interpretation involves more than merely citing a precedent. Positive interpretation means that the Court cites the precedent as a controlling authority or otherwise indicates "the Court's explicit reliance on the case for at...