REPUGNANT PRECEDENTS AND THE COURT OF HISTORY.

• Author: Rice, Daniel B.

Aged Supreme Court precedents continue to tolerate many practices that would shock modern sensibilities. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very cultural shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot genuinely explain what ails societally outmoded decisions. Even for justices inclined to condemn these embarrassments in less clinical terms, it is unclear what qualifies courts to make universalist claims about contemporary American values.

The Court recently sidestepped these difficulties by insisting that one of its most reviled decisions had been "overruled in the court of history." In substituting rhetorical flair for analytical precision, however, the court-of-history trope threatens to destabilize the Court's doctrines of horizontal and vertical precedent. This Article urges greater normality in implementing perceptions of national ethos. It first defends the inquiry's legitimacy by recovering a longstanding judicial tradition of pronouncing specific practices abhorrent to modern cultural norms. It then underscores the project's stakes by identifying an assortment of precedents that trudge along as ethical outcasts. After highlighting several tangible and expressive harms that these decisions can still inflict, I propose that the Court integrate its ethical judgments into the existing stare decisis framework. And I challenge the Court's presumed incapacity to dislodge vestigial precedents. These relics may be difficult to pry loose, but we are not stuck with them forever.

TABLE OF CONTENTS INTRODUCTION I. PRECEDENT IN THE COURT OF HISTORY II. THE LAW OF NATIONAL CHARACTER B. Aversive Ethos C. Finding Ethos III. REPUGNANT PRECEDENTS A. Definition and Scope B. Liberty C. Equality IV. IMPLEMENTING ETHOS A. The Stakes of Stasis 1. Ongoing Harms a. Property and Power b. Expressive Degradation c. Doctrinal Incoherence 2. Ongoing Risks a. Domestic Repetition b. Foreign Imitation c. Judicial Reliance B. Acknowledging Departures C. Regularizing the Court of History 1. Preserving Stare Decisis 2. "Ethical" Overruling 3. Procedural Options D. Seizing Opportunities CONCLUSION INTRODUCTION

For much of American history, visitors to the U.S. Capitol encountered a commemorative bust of Chief Justice Roger Taney. (1) But this increasingly stale symbol collided with the moral demands of modern life. In late 2022, Congress voted overwhelmingly to replace Taney's likeness with that of Justice Thurgood Marshall. (2) By swapping the author of Dred Scott (3) for a champion of racial equality, legislators would signal "what our country stands for" and "what it must never stand for again." (4) Taney's haunting visage--this bipartisan act revealed--was plainly "not representative of our Nation today." (5)

Judicial precedents, like well-placed sculptures, can signify what America does and does not stand for. It is not hard to identify Supreme Court decisions that have come to memorialize prevailing cultural values. For example, our society no longer debates whether interracial cohabitation should be criminalized, (6) whether women should be exempted from jury service, (7) whether foreign-language instructors should be imprisoned, (8) or whether chicken thieves should be sterilized. (9) Practices like these are worse than unlawful--they are un-American. In the normative universe we occupy, it is simply inconceivable that the justices might reverse course and deem them constitutional.

But precedent's intrinsic durability has a darker side. Supreme Court decisions--like timeworn statues--can linger long after their ethical foundations have crumbled. (10) According to the law on the books, children of any age may be conscripted into the military; (11) nonwhites may be forbidden to enter the country (12) or become naturalized citizens; (13) women "of lewd character" may be confined to residential ghettos; (14) American-flag merchandise may be criminalized; (15) and states may require able-bodied persons to perform uncompensated labor on public roads. (16) It might seem unthinkable that such abhorrent policies would be attempted today. But in a sense, that is precisely the problem: precedents become harder to dislodge as the practices they validate fail to reemerge. (17) For this reason, constitutional doctrine is teeming with artifacts that are culturally unrecognizable.

This dynamic was made manifest in the Court's recent Trump v. Hawaii (18) decision. Hawaii upheld the Trump administration's stringent immigration restrictions from several predominantly Muslim-majority countries. (19) Yet this petitioned-for outcome packed a surprise: the Court's seeming repudiation of Korematsu v. United States. (20) Decades before, Korematsu had sunk into the anticanon of American constitutional law--a notorious example of sacrificing constitutional values to perceived military necessity. (21) Two modern Supreme Court nominees had even refused to acknowledge the case's precedential status. (22) But without a revival of race-based security measures, it was unclear how the justices could remove this lingering stain on the legal system.

An inter-Court exchange eventually brought Korematsu to the surface. Dissenting in Hawaii, Justice Sotomayor drew upon Korematsu's "sordid legacy" in accusing her colleagues of "redeploying] the same dangerous logic" underlying that decision. (23) Chief Justice Roberts, speaking for the Court, recoiled at this comparison. Far from distinguishing Korematsu solely on legalistic grounds, he denounced the exclusion order it upheld as "morally repugnant." (24) The Court closed with a verdict as sonorous as it was conclusory: that Korematsu was "gravely wrong the day it was decided" and had been "overruled in the court of history." (25) Indeed, the Hawaii majority was simply "mak[ing] express what [was] already obvious." (26)

This apparent break with precedent was highly unorthodox. By attributing Korematsu's overruling to a metaphorical entity, the justices implied that external cultural forces--with no direct judicial input--can transform a previously sanctioned practice into one that is "obviously]" unlawful. And in characterizing Korematsu's downfall as a fait accompli, the Hawaii majority elided any discussion of the factors that ordinarily govern the stare decisis inquiry, such as a decision's practical workability, its consistency with earlier and later opinions, the quality of its reasoning, and the extent of relevant reliance interests. (27) The Court instead suggested that "morally repugnant" decisions deserve to be scrapped without the usual procedural courtesies. All of this was new: for the first time, the Court bypassed its stare decisis framework for the ostensible purpose of vindicating core national values. (28)

It is tempting to view this development as a peculiar one-off, an improvised erasure of a singularly problematic precedent. (29) But Korematsu's formal passing should not be written off as a meaningless aberration. It is always worth studying novel mechanisms of doctrinal change with an eye toward disciplining their future use. (30) And, more to the point, the court of history represents one plausible response to an ongoing systemic difficulty--the problem of societally obsolete precedents. Indeed, the Court's decision to invoke that metaphor in such a prominent context greatly elevated its visibility in our legal culture.

In 2020, for example, Justice Kavanaugh asserted that "[t]he court of history" had repudiated not only Korematsu but also unspecified decisions giving short shrift to "free-speech principles" during wartime. (31) Lower courts have likewise begun employing the concept for its precedent-dashing potential. (32) And constitutional advocates have invoked the court of history routinely since Hawaii. (33) At a time when scholars and jurists are hotly debating precedent's proper role (34)--and when the Court's changed composition augurs significant doctrinal revision--it is essential to understand any technique that would sideline the stare decisis inquiry entirely.

Against that emerging backdrop, this Article assesses the precedential implications of decided shifts in our national character. The justices appear to believe that some practices are so contrary to modern cultural norms--so obnoxious to the very idea of America--that any decisions legitimating them cannot possibly retain ongoing force. This approach entails competing strands of institutional humility and immodesty. On the one hand, the Court is sensible enough to acknowledge that extrajudicial forces can deprive its rulings of any practical vitality. (35) This perspective envisions legal change as emanating from the lived commitments of the American people rather than the solitary edicts of an elite juristocracy. Yet the very act of deciphering our collective norms would seem to smack of amateur sociology, not conventional legal analysis. And the existence of any such norms can hardly be taken for granted in an increasingly fractured society. (36) Why should judges be trusted to make sweeping claims about America's true character? (37)

As it happens, courts at all levels have been doing so for centuries. (38) Rather than close their eyes to acts of cultural settlement--or filter their observations through rigidly legalistic modalities--courts have branded a litany of arrangements as antithetical to current American values. And there can be no doubt that perceptions of intolerability are a powerful driver of legal change. (39) It would be surprising if courts played no role in propagating the most basic norms undergirding our shared legal environment. Indeed, it was the sheer normality of this task that enabled the Roberts Court to stamp Korematsu as societally immoral. This longstanding (if underappreciated) practice reveals just how...