Stare decisis in a classical and constitutional setting: a comment on the symposium.

• Author: Smith, Steven D.
• Position: Response to article by Gary Lawson in this issue, p. 1

The doctrine of stare decisis presents puzzles wherever it appears. Why should a court give "weight" to--or regard itself as "bound" by (1)--an earlier decision rendered by the same court, or a court of equal stature? (2) It seems that there are two possibilities. The later court will think that the earlier decision got the law right, or it will think the earlier decision got the law wrong. In the first case, it seems that there is no need to talk of following the earlier decision or of being "bound" by it; the later court can simply decide the current case in accordance with what it thinks the law is. And in the second case, it is not clear why the error of the earlier decision should be perpetuated. Two wrongs famously do not make a right. So why commit injustice just because injustice has been committed before? (3)

These are familiar, even perennial, questions. (4) The present symposium does not ask its contributors to address these questions across the board; its more focused topic (which, respecting the venerable conventions of academic symposia, the various contributors have addressed or neglected in varying degrees) concerns the relation between stare decisis and the originalist approach to constitutional interpretation. In responding to these contributions, I will begin by briefly reviewing the prudential concerns discussed by some of the symposiasts, concerns that have led many courts and scholars to favor a modest doctrine or policy of stare decisis. Then, focusing in particular on the challenging articles by Charles J. Reid, Jr., and Gary Lawson, I will ask what difference it makes, if any, if the question of stare decisis is considered with reference to the text and historical context of the United States Constitution.

1. THE PRUDENCE OF PRECEDENT

   As several of the articles in this symposium note, American courts, both in the Founding period and more recently, have typically embraced a modest doctrine of stare decisis. The presumption is that a court should respect and follow previous decisions, (5) but the presumption is not categorical: courts have been quite willing to disregard or overrule particularly objectionable precedents.

   From a purely practical standpoint, this modest use of stare decisis seems to make good prudential sense. Suppose you are a judge assigned to a case that closely resembles another case decided previously. The sensible course, it may seem, is to see how the earlier case came out and then do likewise. Your time is limited, after all, so if a respected and presumptively competent judge has already studied the issues and reached a considered conclusion, why should you duplicate those labors? Moreover, citizens in the community may have learned of the earlier decision and relied on it in conducting their affairs. To revisit the issue and decide it differently could frustrate their expectations; to make a practice of such rethinking could undermine the whole basis by which lawyers advise clients on what "the law" is and thus subvert the community's commitment to the "rule of law." Departure from precedent may also seem to entail disparate treatment of litigants, thus offending commitments to equality. (6)

   Still, you would not want to make the rule of precedent absolute. Judges are fallible human beings, after all, who occasionally commit serious and obvious blunders, and you would want to reserve the ability to discard such misguided decisions. Or the times, they may have been a-changin', so that a decision that was sensible enough when rendered may have become anachronistic. Once again, you would want to preserve the ability to retire such honorable but outdated precedents from ongoing service.

   These considerations, it seems, point to a practice whereby courts normally and presumptively follow precedent while reserving the right to overrule decisions that are incongruent with the requirements of law, or of life. Polly J. Price's article in this symposium describes a practice of stare decisis by early American state courts that largely conformed to this commonsensical prescription. (7) Courts derived the authority of precedent, Price explains, from a concern to protect expectations, and they applied the doctrine most earnestly in areas--property and contracts in particular--in which the protection of expectations has been deemed a paramount concern. (8) But this prudential approach also led courts to depart from precedent "if they were first satisfied that the change would improve the law, usually in the sense that it would better reflect community practice, and if they were also satisfied that the change would not greatly disturb settled expectations." (9)

   It may be that such prudential considerations are all there is to stare decisis. Does anything more really need to be said? Still, this modestly pragmatic account will leave some critics dissatisfied. (10) Some scholars dispute the claim that stare decisis promotes rule-of-law values, at least in the constitutional context. (11) Moreover, the platitudinous prescription that arises from the prudential considerations may appear singularly unhelpful. It has proven devilishly difficult to articulate any formula for determining when a past decision is sufficiently defective or outdated so as to warrant overruling, or indeed even to be specific about the criteria that should govern this judgment. (12) But in the absence of clear guidelines, the doctrine of stare decisis may come to seem vacuous: "A court should follow past decisions--except when it shouldn't."

   And the elasticity of the doctrine may invite abuses. A practice of standing on precedent on an ad hoc, now-and-then basis may allow courts to shirk responsibility for their decisions: the joint opinion in Planned Parenthood v. Casey (13) is a case in point. In a similar vein, Stephen B. Presser's article in this symposium points to the possibility that stare decisis may serve as a pretext for opportunistic hypocrisy. (14) Criticizing Cass Sunstein's recent embrace of a precedent-respecting, Burkean "minimalism," Presser suggests that Sunstein is a hanger-on in the company of Burke's foul-weather friends--people who take shelter in precedent and tradition when the political winds are against them, but will blithely abandon precedent as soon as the jurisprudential forecast turns more favorable. (15)

   Two of the contributors to this symposium raise more specific doubts about the prudential account of precedent. Reid suggests that at least in the period of the Founding and the early Republic--the period in which our constitutional regime was instituted--precedent was understood not in purely prudential terms but rather from a natural law framework within which lawyers thought and worked. (16) Lawson argues that however powerful the prudential justifications for following precedent may (or may not) be in common law adjudication, they are ruled out in the constitutional context by the Constitution itself. (17) Let us consider these arguments in turn.

2. PRECEDENT AND THE "EVIDENTIARY" CONCEPTION OF JUDICIAL DECISIONS

   Reid's erudite article marshals impressive evidence in support of his contention that, for early American lawyers working in the common law tradition, the practice of stare decisis was more than a matter of prudence; it was the product of a natural law conception of the law. This conception is manifest in the recurring claim from that period (and earlier) that judicial decisions are not law "of themselves," as Justice Joseph Story put it, but instead merely "evidence" of law. (18) The view of prior decisions as "evidence," Reid explains, was a corollary to the classical belief in "a preexisting body of 'law' that reflected a transcendent reason that stood outside and above the positive enactments of legislatures and the particular decisions of judges, and that courts might discover but could not make." (19) This view, Reid suggests, was part of "a thought-world that was already beginning to vanish." (20) In his conclusion, Reid shows how many modern scholars have failed to notice this jurisprudential transformation and, as a result, have systematically misunderstood the thinking of early American jurists on the subject of stare decisis. (21)

   Reid is convincing in his description of the natural law framework of classical and early American legal thought. (22) But to say that lawyers understood precedent in natural law terms is not equivalent to saying that they deduced or derived their views of precedent From natural law assumptions. The point is in one sense a small one, but it is relevant to the topic of the symposium and hence worth pursuing. Here is one way to think of the difficulty: the modest practice of following precedent employed by American courts and described by Reid raises two kinds of questions. First, why follow precedent at all? Why give past decisions any "weight," in other words, in deciding a pending case? Second, assuming there is a satisfactory answer to the first question, why is it permissible in some cases not to follow precedent? Reid's exposition of the natural law presuppositions of early American lawyers seems responsive to the second kind of question, but his account gives less satisfaction with respect to the first.

   It is understandable, that is, how lawyers who regard judicial decisions not as law "of themselves" but instead merely as "evidence" of some independent or preexisting law would feel authorized to depart from those decisions when the decisions seem to have gotten the law wrong. It is the law, after all, that should govern--not the mere (fallible) evidence. This is the recurring theme of Reid's article, and it is convincing. But the natural law framework provides no obvious explanation for why courts would presumptively follow precedent in the first place--other than perhaps for the sorts of prudential considerations noticed already. (23) If a previous decision was only evidence of the law and "was only good to...