PRECEDENT AND DISAGREEMENT.

• Author: Staszewski, Glen
• Position: Book review

SETTLED VERSUS RIGHT: A THEORY OF PRECEDENT. By Randy J. Kozel. New York: Cambridge University Press. 2017. Pp. x, 176. Hardback, $99.99; paperback, $34.99.

INTRODUCTION

Supreme Court justices have fundamentally competing perspectives regarding the best approach to constitutional interpretation. The Court has therefore never adopted one authoritative methodology of constitutional interpretation. Rather, the Court uses different methodologies to decide different cases, justices frequently vacillate in their preferred interpretive methods, and many decisions fail to reflect any foundational approach. Within the bounds of legitimate judicial craft, constitutional interpretation--and legal interpretation more generally--is a methodological free-for-all.

Notwithstanding the Court's interpretive pluralism, justices have consistently embraced the principle of stare decisis, and the presumption that courts will follow applicable precedent is one of the defining features of the American legal system. This practice is widely understood to promote efficiency, stability, and the legitimacy of the judicial system. Yet it is also widely accepted that "[s]tare decisis is not an inexorable command" (1) and that the obligation to follow precedent is a prudential principle that can be overcome by other considerations, including an overwhelming desire to get things right. (2) Aside from these areas of common ground, however, the Court has never produced a consistent theory of precedent, and there is no dominant understanding of stare decisis or the best way to resolve its seemingly contradictory premises. (3)

Randy Kozel's (4) insightful and provocative new book, Settled Versus Right: A Theory of Precedent, argues that the Court's interpretive pluralism has precluded a consistent and uniform doctrine of stare decisis. Justices weigh the benefits of stability against the harms associated with standing by an erroneous or flawed decision when evaluating whether to adhere to past decisions. Because justices with competing interpretive perspectives use different metrics to identify and measure the relevant harms (and to determine whether a prior decision was erroneous or flawed in the first instance), a pluralistic Court cannot treat precedent in a consistent or uniform fashion if each justice is left to her own interpretive devices.

Kozel believes that the absence of a consistent and uniform doctrine is particularly problematic because stare decisis is designed to promote the stability and impersonality of law. Yet stare decisis cannot perform these functions if every justice follows a different approach to precedent. Kozel therefore advocates a "second-best" approach that would only allow for the consideration of traditionally relevant factors that can be applied independently of each justice's fundamental methodological and normative commitments in assessing whether to adhere to a mistaken decision. (5) "The pivotal difference between the Court's existing account of stare decisis and this second-best approach is the latter's introduction of doctrinal revisions designed to alleviate the problems posed by interpretive disagreement" (p. 128). This approach would generally preclude justices from considering the substantive harm that would result from continuing to follow a mistaken decision, the persuasiveness of the challenged precedent's reasoning, or the impact of following precedent on the overall coherence of constitutional law. (6) While Kozel recognizes that his proposal would require justices to adhere to decisions they regard as mistaken, he contends that his approach reflects a theoretically neutral compromise that could reasonably be acceptable to justices with fundamentally competing interpretive perspectives. (7)

This Review contends that, far from presenting a neutral theory of stare decisis that should reasonably be acceptable to everyone, Kozel's second-best theory of precedent is deeply normative and inherently controversial. While Kozel acknowledges that his second-best approach "privileges" stability and impersonality (p. 106), his proposal would go a significant step further and generally exclude competing normative values that justices with fundamentally different jurisprudential perspectives could legitimately find dispositive. At the end of the day, most justices would have compelling grounds for rejecting the second-best approach. The proper treatment of precedent should therefore continue to be the subject of reasoned deliberation and ongoing disagreement. Interpretive pluralism is the first-best world, and precedent should continue to be used and evaluated in a pluralistic fashion.

This Review proceeds to set forth the outlines of an alternative conception of precedent that is grounded in deliberative democratic theory. This theory accepts interpretive pluralism as a desirable feature of the American constitutional order. It also recognizes that the fundamental purposes of presumptive deference to precedent are to facilitate reasoned deliberation within the judiciary and to shift responsibility for changing entrenched features of the law to more deliberative or broadly representative institutions of government. Promoting continuity and the impersonality of law are merely side benefits of stare decisis. This theory also recognizes that the law frequently does not provide a single correct answer and that constitutional meaning should be provisional and potentially subject to ongoing contestation. The true purposes of presumptive deference to precedent are therefore served whenever the Court considers and responds in a reasoned fashion to prior decisions, regardless of whether the Court follows or overrules its precedent.

1. INTERPRETIVE PLURALISM AND SECOND-BEST STARE DECISIS

   Kozel's book is a tremendous resource for thinking about and understanding the use of precedent, regardless of whether one agrees with his normative perspective or his proposal for a second-best approach. He provides a wealth of information about different aspects of precedent, the broad range of purposes that can be served by following it, the legitimacy of stare decisis within the American constitutional system, and the fluctuating and sometimes inconsistent doctrine employed by the modern Court. (8) Settled Versus Right is impressive scholarship by any measure, and it should be required reading for anyone who is interested in the concept of precedent.

   Kozel is deeply respectful of the integrity of law and the justices of the Court. He believes that widespread allegations that the Court is acting in an unprincipled or political manner when it applies precedent in an inconsistent fashion are misplaced. "The problem," he contends, "is that the modern doctrine of stare decisis is undermined by principled disagreements among justices acting in good faith" (p. 6). And the root of this problem is interpretive pluralism--"a vision of constitutional decisionmaking characterized by the absence of commitment to any particular interpretive theory" (p. 96).

   Kozel explains that under the Court's current approach, first-order methodological disagreement among the justices regarding the proper approach to constitutional interpretation will carry over into each justice's decisions regarding whether to follow or overrule a precedent. (9) This naturally occurs because different approaches to precedent tend to correspond with different interpretive methodologies and similar interpretive methodologies will even lead to different approaches to precedent if those interpretive methodologies are premised upon different normative commitments. (10) For example, an originalist is likely to have a different perspective on precedent than a living constitutionalist, and a structural originalist is likely to have a different perspective on precedent than someone who follows originalism based on consequentialist considerations (pp. 62-67). These competing methodological and normative orientations are incorporated into the Court's treatment of precedent under existing doctrine when different justices assign different weights to the amount of harm that would result from continuing to follow a problematic decision and the corresponding benefits that would result from setting things right. (11) Kozel regards this as unacceptable for a legal doctrine that is ostensibly designed to promote the stability and impersonality of law. (12)

   One way to fix this problem would be for the justices to adopt a uniform and consistent theory and method of constitutional interpretation. (13) The justices could then proceed to adopt the approach to precedent that corresponded with the Court's chosen interpretive approach. Kozel recognizes, however, that this "first-best" approach to stare decisis is unavailable because the justices will not realistically agree upon or follow a uniform and consistent approach to constitutional interpretation. (14)

   Kozel therefore advocates a second-best approach to stare decisis. The key, he explains, is to establish mechanisms for separating the ongoing normative and methodological disagreement in constitutional interpretation from the Court's treatment of precedent so that the former does not infect the latter. (15) Kozel's preferred mechanism for implementing his approach is to reform stare decisis doctrine by allowing justices to consider traditional factors that are relevant for assessing whether to follow or overrule a problematic decision that do not depend on their own fundamental jurisprudential or normative commitments, while generally excluding factors that are inseparable from each justice's individual commitments from the calculus. (16) Under this approach, justices should consider the procedural workability of existing law and the accuracy of its factual underpinnings when assessing whether there is a "special justification" for overruling an erroneous decision, and those factors should be weighed against the disruption that...