SETTLED VERSUS RIGHT: A THEORY OF PRECEDENT. By Randy J. Kozel. Cambridge University Press. 2017.
Randy J. Kozel's new book, Settled Versus Right: A Theory of Precedent, offers a timely and important contribution to the age-old debate over stare decisis. Advocating an institutional rather than personal view of judicial authority, he urges judges and Justices to focus on nonmerits factors such as workability, factual accuracy, and reliance in deciding whether to overrule most types of constitutional precedent. Judges today must craft constitutional doctrine in an environment characterized by what Kozel (rather politely) calls "interpretive pluralism": the polity is riven by sharp disagreements not only over particular results in constitutional cases, but also over interpretive method, and even the character of law and the nature of legal inquiry. Focusing on the merits in that environment, Kozel warns, is a road to perdition. Unable to agree on which past decisions are most wrong, and thus most in need of overruling, we will keep goring each other's oxen until we are knee-deep in blood. To avert this unappealing outcome, Kozel proposes that judges and Justices maintain a stable peace between warring constitutional factions by generally adhering to precedent unless nonmerits factors support a course correction.
Kozel's book is exceptionally timely for two reasons. First, the structural problem he identifies--sharp and pervasive disagreement over legal issues--seems only to have gotten worse in the months since his book appeared. The Supreme Court's most recent Term, indeed, was chock full of cases presenting such sharp political and methodological disagreements. (1) In two cases, moreover, the Court self-consciously overruled precedent, ostensibly (though unconvincingly) for reasons consistent with Kozel's theory. (2) Second, the most recent Term also proved to be Justice Anthony Kennedy's last, thus giving President Trump the opportunity to appoint a second Justice and cement a conservative majority. (3) Trump's choice of then-Judge Brett Kavanaugh, furthermore, led to an exceptionally bitter confirmation fight featuring allegations of sexual assault among other things. (4) For all these reasons, it seems safe, then, to expect many more fights over stare decisis in the years ahead, and Kozel's cogent articulation of a workable theory will at least provide a basis for evaluating such disputes through analysis rather than intuition.
Sadly, however, the same developments that make Kozel's contribution so timely may well limit its influence. Amid sharp partisan disagreement, with a newly emboldened conservative majority on the Court, the institutional outlook Kozel advocates is unlikely to restrain the Court from delivering the goods, in at least some cases, for the political coalition its majority represents. By the same token, partisan pressure on courts, combined with legislative gridlock and governing incapacity due to partisan paralysis, may tempt courts to try solving problems better left to the political process, even when doing so requires departing from settled understandings. At the least, two cases overruling precedent in the last Term suggest such dynamics are likely: in one, Janus v. American Federation of State, County & Municipal Employees, Council 31, the Court overruled a disfavored precedent for transparently ideological reasons; in the other, South Dakota v. Wayfair, Inc., it took responsibility upon itself for updating longstanding Dormant Commerce Clause principles despite Congress's failure to do so. (5)
Kozel's proposal might then go unheeded, but his contribution is no less valuable for that. By showing that a value-neutral approach to precedent is at least possible, Kozel has provided a means of calling judges to account when they pursue an ideological agenda instead. He has also powerfully defended an institutionalist understanding of judicial authority at a time when it may be under threat. To the extent judges allow erosion of that understanding through incautious disregard for precedent, we will all be worse off.
My Review begins below in Part I with a brief synopsis of Kozel's argument. Part II then discusses his theory's particular value, and challenges, in our historical moment of acute polarization and political conflict over constitutional law. To make Part IPs claims more concrete, Part III then turns to Janus and Wayfair. It uses the two cases to illustrate pressures courts may face in the years ahead and assesses how well these decisions accord with Kozel's theory. The Review ends with a conclusion reflecting more broadly on the importance of stare decisis and other institutional restraints in the current moment.
Kozel's overall objective is to "develop [ ] a theory of precedent designed to enhance the stability and impersonality of constitutional law." (6) Kozel frames his theory, however, not as a theory of precedent for all time, but rather as a theory appropriate for our particular historical moment. "The American legal system," he observes, "has not reached anything approaching consensus regarding the proper method for understanding and applying the Constitution." (7) On the contrary, "US law is home to pervasive disagreement over constitutional interpretation." (8) This context, he argues, requires a theory of precedent that can reinforce an impersonal and institutional understanding of judicial authority while taking account of "the unique challenges posed by disagreements--good-faith, principled disagreements--about the proper ends and means of constitutional interpretation." (9)
Kozel's solution is to refocus the stare decisis inquiry on nonmerits considerations--those which "are susceptible to principled application by justices across the philosophical spectrum." (10) This is concededly a "second-best theory of stare decisis," Kozel argues, but it is necessary "to complement our second-best world of interpretive disagreement." (11)
As groundwork for this argument, the book's early chapters offer a perceptive discussion of many key questions regarding how precedent does and should operate within our legal system. Kozel begins by discussing precedent's key functions, distinguishing in particular between "vertical" stare decisis (which settles disputed questions for courts lower down in the judicial hierarchy) and "horizontal" stare decisis (which constrains a single court from lurching too sharply in unexpected directions). He also distinguishes between a precedent's "scope," meaning what features of a decision's outcome and reasoning count as binding authority, and its "strength," meaning what burden must be met to override it. He then canvasses various benefits and drawbacks of horizontal stare decisis. Adhering to past precedent promotes judicial economy, harnesses collective wisdom, promotes uniformity in case outcomes, constrains individual judges, promotes an impersonal understanding of judicial authority, and protects reliance on past decisions. On the other hand, stare decisis allows errors and injustices to persist and may encourage judges to overreach, so as to stretch their own preferred views into the future.
Kozel then focuses in more detail on problems of precedential strength and scope. On the question of strength, Kozel unpacks how...