PRECEDENT AND THE SEMBLANCE OF LAW.

AuthorSachs, Stephen E.
PositionBook 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).

Americans disagree about the Constitution. Often they disagree deeply. The Supreme Court sometimes purports to "resolve [an] intensely divisive controversy." calling both sides "to end their national division"--but it rarely succeeds. (3) Five-four majorities shift with the political winds, whether on abortion, the death penalty, or campaign finance. (4) At the level of theory, the disagreement is just as bad: different Justices deploy different arguments from originalism, pragmatism, common-law constitutionalism, or other approaches still more exotic or idiosyncratic (assuming they draw on any theories at all). Justice Scalia once suggested that his colleagues didn't even agree "on the basic question of what we think we're doing when we interpret the Constitution." (5) If the leaders of American law are so torn on these questions, are we sure that there really are right answers? Does America truly have any constitutional law?

Into this divided world comes Randy Kozel's Settled Versus Right. Like its author, the book is insightful, thoughtful, and kind; it's deeply committed both to describing and to improving the world that it sees. Its argument and approach are worth thinking deeply about, even for--indeed, especially for--those who might disagree with its conclusions. But despite its upbeat tone, the book paints rather a dark picture of current law and the current Court. It depicts a society whose judges are, in a positive sense, lawless--not because they disregard the law, but because they are without law, because they have no shared law to guide them. What they do share is an institution, a Court, whose commands are generally accepted as law by lower courts (and, at least sometimes, by the Justices themselves).

So Settled Versus Right makes the best of what we've got. Instead of a legal system that shifts with each new appointment, it seeks a body of precedent that's stable and impersonal (p. 11), the way law ought to be. It hopes to reorient judicial culture around a "second-best" stare decisis (pp. 100-103): one that deliberately enforces precedents that are "badly reasoned" (6) or "flagran[tly]" wrong, so as to avoid reopening our disagreements on interpretive method or theory (pp. 103-104). If we can't agree on rules of law, or on the theories that ought to generate these rules, at least we can compromise on preserving whatever our legal institutions have done before.

Though this compromise is well-argued, it may fail to satisfy both sides. On the one hand, if we do still have some constitutional law, this law may take a view on our rules of stare decisis--a view that might not be the same as Kozel's. The second-best theory is openly revisionary, rather than merely trying to capture our existing legal practice (including our practice of precedent). Without a firm grounding in existing law, its pursuit of stability and impersonality may yield a system that's more lawlike than lawful. It may be a mere semblance of law, the way Kant saw "love of honor and outward propriety" as mere "semblances of morality," (7) sharing only an obedience to "strict laws of conduct for their own sake." (8) On the other hand, if our disagreements really have deprived us of any real law to apply--leaving judges to advance their values as best they can--then there are many other important values to consider, beyond maintaining the system's lawlike nature through stable and impersonal rules. A judge might wish to use her office to protect the environment, prevent violent crime, and so on; the second-best theory can't tell us where stability and impersonality rank on that list.

Perhaps there's another way forward. Rather than patching up a broken system, we might use Kozel's analysis to illuminate ways of deepening our existing areas of agreement on rules and theories of law. In this project, stare decisis might aid us, if we see it as a fallback and not as a foundation-stone. Precedent often serves as a provisional doctrine, supplying us with stand-in answers when we're unsure of the real ones--requiring us to act as if a court has decided a case correctly, but not necessarily to treat the court's decision as itself establishing the standard of correctness. (9) Perhaps precedent is supposed to be a mere semblance; perhaps that's its proper role, letting us debate the contours of our actual law without requiring a thousand judicial flip-flops along the way. If so, then expanding our agreement on the law might indeed involve a cultural change, but of a somewhat different sort. We ought to take the law rather more seriously, and courts and judges rather less so. Once we do, we might find that our world is a lot less lawless than we think.

I

The problem with "[t]he prevailing approach to precedent," Kozel writes, is that it presumes "a greater degree of agreement about constitutional theory than actually exists" (p. 6). Our legal system features "pervasive disagreement over constitutional interpretation," without "anything approaching consensus" as to "the proper method" (p. 6). This disagreement is often "principled" (p. 17): the disputants are reasonable people arguing in good faith, and we can't show (on shared standards) that one side is obviously correct. But even if we could, it wouldn't help. The combination of legal disagreements, party alignments, multimember courts, and staggered appointments means that our system will inevitably be "characterized by interpretive pluralism" (p. 98).

The unfortunate result is that our constitutional practice will "vacillat[e]" along with "changes in judicial personnel" (p. 18). Whether, say, Citizens United v. FEC (10) "remains the law of the land" will turn on whether new appointments make "the four-justice dissent into a five-justice majority," even as "the Constitution itself will not have changed a bit" (p. 5). In what Kozel describes as "the worst-case scenario"--a scenario that seems not so far off--the very "ideal of constitutional law as stable and enduring" might "give way to the notion that judicial identity and legal meaning are one and the same," and that the law is whatever judges say it is (p. 99).

In its extreme form, this disagreement could undermine the case that there is any constitutional law on the matters in dispute. The judges who write concurrences and dissents seem to think they're making legal arguments, and that some of their arguments are right--that one side's answer is legally better than the other's. But how is this possible? On the most commonly accepted account of law, what makes a legal rule valid--or a legal answer good--is the actual practice of Americans and their attitudes thereto. (11) If Americans are so fundamentally divided that they lack any unified legal practice, then how can one side have the right of the argument legally, and not just prudentially or morally?

This is what Matthew Adler calls "The Puzzle": on the "contested questions" of constitutional theory, are there any "legally correct answers"? (12) If there's some deep consensus at work, why don't we see more evidence of it in practice? (13) And if there isn't one, why do judges act like they're disagreeing about the law (say, "[w]hether there really is a federal power to regulate marijuana"), when their disagreement itself shows the questions at issue to be "legally indeterminate"? (14) As Adler asks, "[w]hat would it take for one side in this debate to be correct and the other incorrect? How is that even possible given the very fact of debate?" (15) This, in turn, poses what he calls "the "Meta-Puzzle': Why has the Puzzle failed to bother constitutional theorists? . . . Why have theorists not spent more time reflecting upon the status of the arguments they are making?" (16)

One way to explain all this disagreement is to explain it away, as a giant mistake--to adopt an "error theory" of constitutional law. (17) On almost all legal questions. Brian Leiter notes, American society displays "massive and pervasive agreement": most disputes stay out of court, most filed cases never reach trial, and so on. (18) For these disagreements, there really are right legal answers, grounded in the shared practices of the American legal community. But, Leiter argues, there are also some deep questions on which "the practice of officials breaks down, and the 'law' is up for grabs." (19) To the error theorist, studying such questions is like studying astrology or the Loch Ness monster: the field is useless, because its subject doesn't really exist. (20) But when judges proceed to address these questions, they don't always notice that the ground has run out from underneath them. Misled by their experience of agreement elsewhere, they keep right on going, as if legal answers to the deep questions are still out there. (21) So long as the judges don't look down, they can keep running, Wile-E.-Coyote-like, over empty air.

Kozel's response to these alleged gaps in the law is to start building bridges. Whatever the right answers might be--if there are any--we can at least find the answers that courts gave in the past. Enforcing those answers today, through an enhanced doctrine of precedent, makes the practice of American law more stable over time, and it prevents the results in constitutional cases from varying with the personalities of the individual judges deciding them.

At the same time, Kozel would shape the enforcement of past precedent to present circumstances. For stare decisis to "make good on its promise" (p. 103), it has to be made safe for pluralism. We need a doctrine that's immune to "disputes over interpretive philosophy" and capable of "transcend[ing] methodological disputes" (pp. 103, 129). That means "limiting or excluding" any features of stare decisis that might depend "on methodological and normative commitments that vary from...

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