Stare decisis and constitutional text.

Author:Mitchell, Jonathan F.

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances in which stare decisis can be applied.

TABLE OF CONTENTS INTRODUCTION I. STARE DECISIS AND THEORIES OF CONSTITUTIONAL INTERPRETATION A. Pragmatism and Textualism B. Textualism and Stare Decisis II. RECONCILING STARE DECISIS WITH CONSTITUTIONAL TEXT... A. Previous Efforts to Reconcile Stare Decisis with Constitutional Text 1. Equating Supreme Court Precedent with the "Supreme Law of the Land". 2. Interpreting Article III's Vesting Clause to Authorize Constitutional Stare Decisis 3. Stare Decisis as a Heuristic B. Stare Decisis and the Supremacy Clause 1. Invoking Precedent to Uphold a Federal Statute 2. Invoking Precedent to Invalidate a Federal Statute 3. Invoking Precedent to Uphold State Law 4. Invoking Precedent to Invalidate State Law C. A Note on the Rules of Decision Act III. STARE DECISIS AND DECISIONMAKING IV. IMPLICATIONS A. The Supreme Court's Case Law B. The Precedential Value of Supreme Court Decisions Overturning Precedents C. Stare Decisis in Cases Challenging Executive-Branch Action CONCLUSION INTRODUCTION

The doctrine of stare decisis allows the Supreme Court to uphold laws that violate the Constitution and invalidate laws that don't. It is not clear how that practice can be reconciled with the written Constitution, a document that the justices are bound by oath to uphold.

To be sure, many have offered pragmatic defenses of constitutional stare decisis. The themes are familiar: it promotes stability, (1) protects reliance interests, (2) constrains judicial discretion, (3) and reduces the decision costs of resolving constitutional cases. (4) But all of these rationales rest on a controversial premise: that good consequences suffice to justify a judicial practice or doctrine. The Supreme Court, however, derives its legitimacy from the authority of the written Constitution, and to maintain a plausible claim to obedience, the Court must ensure that its rulings comport with the document that confers its power to decide cases. Yet few even attempt to supply a textual justification for a doctrine that permits the Supreme Court to enforce an unconstitutional statute, or subordinate a constitutional one to its previously decided rulings. Even the most thoroughgoing textualists confess that they use stare decisis as a "pragmatic exception" (5) to their obligation to follow the enacted constitutional language, a concession to consequentialist considerations so strong that they trump even fidelity to the written document. (6) This Article will advance a legalistic defense of constitutional stare decisis, a theory of precedent that rests on the written words of the Constitution rather than the consequentialist rationales that are all too often invoked as the exclusive justification for its use. At first blush, this project may sound like a contradiction in terms. It often seems that the very purpose of stare decisis is to produce outcomes that depart from faithful interpretation of the Constitution--all because an earlier court decision had misconstrued the (supposedly) supreme law of the land. (7) Yet this Article will demonstrate that the justices may--in limited situations--use wrongly decided constitutional precedents as rules of decision without betraying their allegiance to the enacted constitutional text. One can accommodate a limited role for stare decisis without surrendering wholesale to judicial pragmatism, or sacrificing textualist interpretive commitments to consequentialist override.

It is crucial to clarify at the outset the limits of this claim. First, this Article considers only a narrow slice of stare decisis: the cases in which the Supreme Court uses its own precedents as rules of decision in constitutional litigation. It makes no claims regarding an inferior court's obligation to follow the Supreme Court's decisions, (8) nor will it consider stare decisis in common law or statutory construction. Second, and more importantly, this Article takes no sides on whether the justices should invoke stare decisis in cases where the Constitution permits them to use it. There is a great distance between defending the constitutionality of a practice and defending its use; although this Article concludes that the Constitution allowed the justices to rely on stare decisis in controversial cases such as Gonzales v. Raich, (9) it will maintain strict neutrality on whether the justices' decisions in those cases were prudent or proper. It seeks only to acquit some of the Court's stare decisis practices of the charges of unconstitutionality that textualist commentators have leveled against them, and provide a theory of stare decisis that enables textualists and originalists, as well as pragmatists, to maintain a limited role for precedent in the resolution of constitutional cases. This Article aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances in which stare decisis can be applied.

This Article proceeds in four parts. Part I explains the difficulties in reconciling constitutional stare decisis with textualist interpretive theories. The problem, in short, is that stare decisis purports to allow erroneous Supreme Court precedents to replace the written Constitution as the rule of decision in constitutional litigation. This practice appears to contradict Article VI's Supremacy Clause, which designates "This Constitution"--not "Supreme Court doctrine"--as "the supreme Law of the Land." (10) It also contradicts the textualists' insistence that judges construe the Constitution in accordance with its original meaning rather than judge-created innovations. As a result, several textualist commentators have declared that their interpretive commitments forbid the justices to rely on precedents except when those precedents represent proper textual constructions of the Constitution. (11) This approach permits the justices to consult precedent for its epistemic value in finding the right textualist answer to questions of constitutional interpretation, but it precludes them from invoking stare decisis, which lets precedent supply the rule of decision in constitutional litigation without regard to its correctness. On this view, constitutional stare decisis necessarily rests on pragmatic interpretive methodologies, and is incompatible with any theory of judging that demands fidelity to the original meaning of constitutional text.

Part II refutes the notion that textualism requires a wholesale rejection of constitutional stare decisis. Even for those who accept the textualists' controversial interpretive premises--which equate "[t]his Constitution" with the meaning of the words in the context in which they were enacted, and regard this original meaning as distinct from and superior to the interpretive gloss of past Supreme Court rulings--the Supremacy Clause still allows for a significant, though limited, role for stare decisis in constitutional adjudication. For a textualist, the constitutionality of stare decisis depends first on whether the case presents a constitutional challenge to an act of Congress, as opposed to a state law, and second on whether the justices are using stare decisis as a sword (to nullify a law) or as a shield (to uphold it).

The indiscriminate textualist attacks on stare decisis go wrong by failing to acknowledge two issues that the Constitution's text and original meaning leave open. The first is whether, and to what extent, the Constitution obligates the justices to nullify unconstitutional federal statutes. Critics of stare decisis often assume that the Constitution compels the Supreme Court to disregard acts of Congress whenever they conflict with a constitutional provision, in the same way that Article VI explicitly requires judges to disregard state laws that contradict federal statutes, treaties, and constitutional provisions. When one proceeds from this major premise, it logically follows that the Supreme Court violates Article V! every time it invokes stare decisis to uphold an unconstitutional federal statute; these rulings sub- ordinate a "supreme" law (the Constitution) to a "nonsupreme" rule of decision (judicial precedent). But the major premise of this argument is wrong on textual grounds; the written Constitution does not require the Supreme Court to invalidate every federal statute that contravenes the Constitution. Instead, the document gives the justices latitude in deciding whether and when to invoke their implied power to review the constitutionality of congressional acts.

To begin, Article VI designates federal statutes as "supreme" law, so long as they are enacted "in Pursuance" of the Constitution. (12) This "in Pursuance" caveat is most plausibly read to confer supremacy on all statutes that survive the bicameralism-and-presentment hurdles established in Article I, Section 7. (13) When the "supreme" Constitution conflicts with a "supreme" federal statute, a textualist justice must adopt a tiebreaking strategy, and there is nothing wrong with invoking an accepted practice such as stare decisis to break this deadlock in favor of congressional legislation. Even for those who believe that "in Pursuance thereof" requires federal statutes to comport with the Constitution's...

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