AuthorKozel, Randy J.

INTRODUCTION 1972 I. CHALLENGING STARE DECISIS 1975 A. Legitimacy 1975 B. Efficacy 1976 II. PRECEDENT'S LEGITIMACY 1978 A. Historical Backdrop 1978 B. Endorsement 1981 C. Theoretical Eoundations 1984 III. PRECEDENT'S EFFICACY 1987 A. Where Precedent Does Its Work 1988 B. Rhetoric and Doctrine 1991 C. Deference as Checking Twice 1992 IV. PRECEDENT'S PROMISE: BIVENS AS CASE STUDY 1994 INTRODUCTION

Whenever the next prospective Justice is nominated to the U.S. Supreme Court, we can count on one thing: senators will ask about the nominee's attitude toward precedent. We have witnessed these colloquies before, (1) and we will witness them again. In uncertain times marked by pitched disagreement, the importance of judicial views on precedent is the rare patch of common ground. (2)

Notwithstanding this attention, legal academics and political scientists have challenged the relevance of precedent to Supreme Court decisionmaking. They acknowledge that the Justices routinely talk about the importance of precedent. Yet when push comes to shove, the argument goes, the rhetoric of stare decisis gives way to the reality of overruling. (3) Scholars debate whether the Supreme Court has "narrowed" precedent as opposed to "repudiating" it, (4) and whether the Court has jettisoned precedent overtly or rather by "stealth." (5) On the most bracing account, the doctrine of stare decisis is taken seriously only by "suckers." (6)

It is not just the efficacy of stare decisis that has come under fire. The doctrine also faces questions of legitimacy. A provocative body of scholarship, much of it proceeding from the originalist school of interpretation, has challenged the lawfulness of deferring to flawed constitutional precedents. Some scholars contend that upholding mistaken precedents violates the judicial duty of fidelity to the Constitution, (7) while others depict precedent as a lesser form of law that cannot supplant the Constitution's meaning as properly understood. (8) Among the critics is Justice Thomas, who contends that overruling "demonstrably erroneous" precedents is not simply a good idea, but a constitutional imperative. (9)

This Article contends that things are not so bleak for stare decisis. By and large, the Justices continue to reaffirm the centrality of stare decisis to the legal order. This commitment to the "rhetoric" (10) of precedent carries important ramifications for the doctrine's impact. When the Supreme Court confirms the foundational status of stare decisis, it sends a message to the lower courts and to the legal system more broadly. It also ensures that the doctrine remains salient and available to future Justices for invocation. The authority of precedent remains intact, notwithstanding the occurrence of occasional overrulings. Stare decisis does not purport to forbid overrulings altogether. (11) The power of the doctrine is in furnishing a framework for determining how and when overrulings may occur.

Stare decisis accordingly can foster stability even as the Court departs from precedent in certain cases. But the doctrine has not realized its potential. At its best, stare decisis provides a mechanism not only for promoting continuity and protecting expectations, but also for increasing the conceptual distance between the identity of the judge and the content of the law. A Supreme Court that gives meaningful deference to prior decisions--even decisions that are flawed--confirms its status as an enduring institution. This is particularly evident when a decision reflects an analytical approach that today's Justices might not favor. Deference in the face of methodological disagreement is the epitome of humility and impersonality. For stare decisis to play the pivotal role the Justices have set out for it, there must be no doubt that decisions retain their viability even when they embody interpretive philosophies that have fallen out of fashion.

To illustrate the dynamics of precedent as well as the path to a more robust doctrine of stare decisis, I consider the Supreme Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, (12) whose fifty-year anniversary is the occasion of this Symposium. Bivens faces challenge in some quarters as a decision in need of reconsideration. My question is not whether Bivens was correct to imply a cause of action for damages against federal officers based on certain constitutional violations. Irrespective of whether Bivens was right when it issued, I view it as a strong case for stare decisis.

Bivens does not rest on factual premises that have eroded over time. It has not proved unworkable as a procedural matter. And it is not the kind of exceptional, disastrous ruling whose consequences are so dire as to demand reconsideration for that reason alone. If there is cause for overruling Bivens, it arises from the decision's willingness to imply rights of action without a clear textual hook, which is a mode of analysis that raises concerns among some Justices. Far from providing a "special justification" for overruling, (13) this consideration points toward the importance of deference. By upholding a prior decision notwithstanding variations in methodological approaches over time, the Justices can give effect to the recognition that stare decisis promotes the rule of law by separating the content of legal rules from the interpretive inclinations of those who currently occupy the bench. The Bivens example is thus significant both in its own right and as a microcosm of the interplay between precedent and interpretive philosophy.

This Article begins by exploring the doctrine of stare decisis as a general matter before proceeding to its implications for Bivens. Part I examines some of the leading challenges to stare decisis in recent years. Part II responds to the first of these challenges by defending the doctrine's legitimacy. In Part III, I move from legitimacy to efficacy, explaining the ways in which precedent influences the trajectory of the law--even when a decision ultimately is overruled.

Part IV applies these lessons to Bivens. That decision is a powerful candidate for reaffirmance under the doctrine of stare decisis. Moreover, ongoing challenges to Bivens afford the Court a unique opportunity. If there is a problem with Bivens, it is that the case reflects an interpretive approach that has fallen out of favor. By upholding Bivens as precedent notwithstanding its failings by today's standards, the Court can demonstrate that shifts in the prevailing winds of interpretive philosophy do not justify revisiting precedent. In committing itself to that principle, the Court can clarify the status of Bivens while revitalizing the doctrine of stare decisis more generally, taking a step toward fulfilling the "promise of precedent." (14)


    Recent challenges to the doctrine of stare decisis have tended to proceed on two fronts. One claim is that deference to flawed precedents is illegitimate, at least in certain circumstances, because it leads judges to act in ways that exceed their lawful authority. (15) The second claim is that, questions of legitimacy aside, the doctrine of stare decisis is just not very important to the Supreme Court's resolution of constitutional disputes.

    1. Legitimacy

      Supreme Court Justices interpret the Constitution. When flawed precedents furnish a mistaken account of the Constitution's meaning, the argument goes, Justices may not perpetuate the error in the name of stare decisis. Instead, they must construe the document correctly, even if that means departing from prior decisions. (16) Whether the position is grounded in the judicial oath, the nature of the Constitution, the institution of judicial review, or some combination of these factors, (17) its upshot is the same: there is a zone where deference to flawed constitutional precedents is not only ill-advised, but illegitimate.

      Commentators who raise concerns about stare decisis vary in the extent to which they would permit the retention of flawed precedents. For some, paramount fidelity to the Constitution is consistent with deference to precedents that have engendered significant reliance. (18) For others, deference to a flawed precedent may be lawful on a limited-time basis to ensure that the law evolves at a gradual pace. (19) A precedent might also warrant deference if it reflects a plausible, longstanding interpretation of an uncertain provision, reflecting a theory of constitutional "liquidation" often associated with James Madison (and to which I will return below). (20) Notwithstanding these exceptions, the Constitution's true meaning--as perceived by today's Court--generally must prevail over precedent when the two are at odds. It follows that there is a domain of constitutional adjudication in which deference to erroneous precedents is impossible to square with the judicial role as properly understood. (21)

    2. Efficacy

      Apart from challenges to the legitimacy of stare decisis, there are also questions about the doctrine's efficacy. The salience of these questions owes to the confluence of two factors. First, the Supreme Court remains willing to reconsider and overrule its prior decisions. Second, the Court has not offset its overrulings with many reaffirmances of precedent on stare decisis grounds. While legal scholars and political scientists have challenged the efficacy of stare decisis for decades, (22) the Court's engagements with precedent over the past few years furnish additional evidence toward the same conclusion. (23)

      It is important to note that debates about the efficacy of stare decisis at the Supreme Court do not bear on the impact of precedent as a vertical matter. The Court remains insistent on the bindingness of its decisions within the lower courts.' (24) Likewise, decisions of federal appellate courts are binding on district courts within their circuits. (25) Judges are permitted to criticize and doubt the...

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