SPECIAL JUSTIFICATIONS.

• Author: Kozel, Randy J.

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).

INTRODUCTION

In Settled Versus Right: A Theory of Precedent, I examine the role of precedent in judicial decisionmaking. The book considers the dynamics of precedential strength, meaning the showing that needs to be made in order to rebut the presumption of deference to precedent. It also addresses the contours of precedential scope, which define the universe of propositions for which a precedent stands as binding authority. (3) In discussing both concepts, I try to illustrate the ways in which the role of precedent is influenced by broader perspectives on legal theory and interpretation. I also offer some thoughts about how an institution like the U.S. Supreme Court might pursue a consistent, unified doctrine of stare decisis even as its members--past and present--adopt very different interpretive philosophies.

The insightful contributions to this Symposium provide an occasion to elaborate upon the book's account of precedent, especially as it relates to the necessary conditions for overruling a flawed decision. The Supreme Court commonly considers whether there is a "special justification" for departing from precedent. (4) Yet there is considerable uncertainty about how the idea of a special justification should be understood.

In this Response, I draw on the existing law of special justifications and compare it with the revised approach I defend in Settled Versus Right. (5) That revised approach is designed to separate the question of overruling from deeper disagreements about legal interpretation. The hope is to establish stare decisis as a unifying force that enhances the impersonality and continuity of the Court and of the law, promoting values the Justices have described as fundamental. The Response--again prompted by the enlightening Symposium contributions--also steps back to consider the process by which the law of precedent might undergo changes of its own. And I close with some preliminary thoughts about the implications of treating stare decisis as a step on the way to somewhere else, an idea captured in different ways by various contributors' references to "provisional" law, (6) "nonideal" constitutional theory, (7) and the search for answers that are "right for now." (8)

Before turning to these matters, I wish to express my profound gratitude to the organizers of and participants in this Symposium: Paul Horwitz,

Corinna Barrett Lain, Allison Orr Larsen, Kurt Lash, Jason Mazzone, Stephen Sachs, Frederick Schauer, and Lawrence Solum. These are scholars for whom I have the utmost admiration, and it is impossible to overstate how honored I am by their willingness to take part. Their Reviews illuminate numerous dimensions of precedent while opening up promising avenues for future inquiry, and it is a privilege for me to be along for the ride.

1. SPECIAL JUSTIFICATIONS IN EXISTING LAW

   The Supreme Court frequently reminds us that overrulings should not occur in the absence of a special justification. The Court occasionally adds that such a justification means something more than disagreement with a prior opinion. It made this point in Planned Parenthood of Southeastern Pennsylvania v. Casey, stating that "a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided." (9) As Justice Scalia wrote in a statutory case a few years after Casey:

   The doctrine of stare decisis protects the legitimate expectations of those who live under the law, and, as Alexander Hamilton observed, is one of the means by which exercise of "an arbitrary discretion in the courts" is restrained. Who ignores it must give reasons, and reasons that go beyond mere demonstration that the overruled opinion was wrong (otherwise the doctrine would be no doctrine at all). (10) Like Justice Scalia's discussion, the Court's recent reminders that an overruling requires more than disagreement have occurred outside the constitutional context, though it has framed those discussions in general terms. (11)

   The Casey Court described its understanding of special justifications as having been "repeated in our cases." (12) Yet its only citations were to dissents, (13) and Akhil Amar has disputed the accuracy of the Court's historical claim in light of major cases such as West Virginia State Board of Education v. Barnette, (14) in which overrulings were "based simply on the belief that the prior case was wrongly decided." (15) Beyond issues of historical lineage, questions also remain as to what a special justification entails under the modern doctrine of stare decisis.

   In this Part, I examine two possible conceptions of special justification under existing law. The first requires the showing of some additional problem independent of disagreement with a decision on the merits. The second, developed by Professor Amar, defines the concept in a more negative sense: there is a special justification for overruling so long as a flawed precedent has neither commanded substantial reliance nor been effectively ratified by the people through their widespread embrace.

   1. SPECIAL JUSTIFICATION AS PRESENCE OF ADDITIONAL PROBLEM

      The Supreme Court's discussions of stare decisis often compare the present state of the world with the conditions that existed when the relevant precedent issued. For example, the Court might ask whether material facts have changed (16) or whether a decision has shown itself to be procedurally unworkable. (17)

      Incorrect factual premises and procedural snags are problems quite apart from the disagreement of today's Justices with the rationale of yesterday's decision. Focusing on these types of factors supports a vision of special justifications as requiring an affirmative showing beyond disapproval of a decision on the merits. Some additional criterion must be satisfied in order to establish the prima facie case for disrupting settled law.

      Yet the Supreme Court has not stopped there. It has also treated a precedent's flawed reasoning as relevant to the stare decisis calculus. (18) This presents a puzzle for the view of special justifications as requiring an additional problem beyond disagreement, because reasoning and disagreement are so closely related. Saying that a decision is poorly reasoned would seem to overlap to a significant extent with saying that it is incorrect. (19) The overlap is difficult to explain if disagreement with a precedent is insufficient to overrule it. The question becomes how weak reasoning can be a special justification in itself, as opposed to a condition that triggers the stare decisis inquiry and starts the search for some further problem such as a mistaken or outmoded factual premise, a procedural flaw, and so on.

      A potential response is found in the work of Caleb Nelson, who provides a conceptual and historical defense of the practice of singling out the most glaring judicial errors for special treatment. (20) Under this approach, a precedent is subject to overruling if it is obviously wrong, but not if it is a close call. The special justification is the presence of a clear error as compared with a less egregious mistake. (21) Mere disagreement with a precedent is not enough to overrule it. But a decision that is clearly erroneous contains its own basis for departure.

   2. SPECIAL JUSTIFICATION AS ABSENCE OF COUNTERVAILING CONSIDERATION

      Professor Amar provides a different account of the Supreme Court's insistence on a special justification for overruling in constitutional cases. He contends that, while past decisions are properly given "a rebuttable presumption of correctness," the Court's overruling practice throughout the twentieth century supports the proposition that "absent certain special countervailing considerations... today's Court may properly overrule yesterday's case simply because today's Court believes the old case incorrectly interpreted the Constitution." (22)

      As for those countervailing considerations, they take two forms. First, a decision that initially was erroneous "may in some situations stand if the precedent is later championed not merely by the Court, but also by the people." (23) The initial tension between the decision and the Constitution is alleviated, "consistent with the document's emphasis on popular sovereignty." (24) Second, the Justices should "give due weight to the ways in which litigants who come before the Court may have reasonably relied upon prior case law." (2) "' Reliance interests "limit the Court's ability to abruptly change course, even if persuaded of past error." (26)

      Professor Amar's theory harmonizes the Supreme Court's statements about special justifications with its apparent willingness to overrule certain decisions based on disagreement with their rationales. If we view the need for a special justification as demanding not the presence of an additional problem but rather the absence of a countervailing consideration, there is no inconsistency in the Court's statements of commitment to stare decisis even while it treats disagreement with a prior decision as a sufficient basis for departure. Such an understanding, Professor Amar concludes, "puts precedent in its proper place" as determined by the Constitution's text and structure and as informed by the Court's historical practice. (27)

2. SPECIAL JUSTIFICATIONS AND SECOND-BEST STARE DECISIS

   The previous Part discussed two potential ways of understanding the role of special justifications in existing law. In this Part, I describe a third approach that is overtly prescriptive. This approach, which is the one I develop in Settled Versus Right, urges a revision meant to better promote values of impersonality and continuity--values that are salient in the Supreme Court's discussions of precedent. I refer to this theory as second-best stare decisis, a term meant to suggest that the rules of...