SUBPRECEDENTS.

• Author: Mazzone, Jason
• Position: Book review

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).

Not all precedent is equal. Some precedents are given more weight, are harder to overturn, than are others. Super-precedents, (3) even super-duper-precedents, (4) have special status. (5) Legal academics consider them canonized; (6) judges cite them with reverence; (7) and judicial nominees, mum on whether they agree or disagree with the outcomes in lesser cases, announce their commitment to our super-precedents. (8) If, compared to regular old precedents, some precedents count for more, might other precedents count for less? This essay makes the case for subprecedents: precedents that have only weak value, such that compared to other precedents, they are more easily ignored and easier to overturn. In his book, Settled Versus Right: A Theory of Precedent, Randy Kozel depicts a world in which judges (and particularly Supreme Court Justices) jockey to render their own rulings impervious to change and seek to elevate their own supporting rationales, hypotheticals, commentary, and even stray statements to the level of binding law, and in which the winners in high-stakes disputes over interpretive methodology and normative considerations get to shape and solidify legal rules for the nation. This essay, prepared for a symposium on KozeFs book, tells a different story: of efforts to minimize the significance of judicial decisions, to limit their reach and power, and to curtail the work they may do in future cases. Kozel's account is one of aggressive judicial ambition; mine, of deliberate timidity. Yet a full understanding of precedent requires attention to cases that start out or end up having limited precedential value. Subprecedents, this essay shows, serve some important, and at times surprising, functions in a system of stare decisis. Consideration of subprecedents thus sheds light on the questions that motivate Kozel's own study and on his noteworthy efforts to ground stare decisis in a "commitment to the abiding continuity of constitutional law" (p. 135) by shifting the operations of precedent away from the predilections of individual judges.

The essay proceeds in seven parts. Each part identifies, in field-guide fashion, a specific kind of subprecedent (illustrated with a case or two), describes its characteristics, and discusses its roles and significance. The focus throughout is primarily (but not exclusively) on constitutional cases, though it bears mentioning that a similar category of subprecedents could be developed for statutory decisions; likewise, while the focus here is on rulings by the Supreme Court of the United States, the approach could be extended to the lower federal courts and to the state courts, all of which decide far more cases than does the U.S. Supreme Court. A short conclusion draws some general lessons and discusses their implications.

1. GOLDEN TICKETS

   Every now and then, in the style of a papal dispensation or a royal pardon to a prisoner whose neck is noosed, the U.S. Supreme Court sets aside the normal rules to help a criminal defendant screwed by the system. Typically, in such cases, the defendant has suffered, through no fault of his own, some terrible legal fate. His plight cries out for a remedy but the law is against him. The Supreme Court is sympathetic but it is also disinclined to announce a new legal rule that will have broad effect. The Court's solution is to issue the defendant what is in essence a golden ticket: a decision tailored to the precise circumstances of the case, designed to benefit the defendant but nobody else. Indeed, in such cases, the Court may specifically warn against anybody else applying the ruling in other circumstances to benefit different defendants (for only popes and kings get to exercise this sort of power). The resulting Supreme Court ruling, in favor of the single defendant, represents a subprecedent.

   Maples v. Thomas, (9) decided in 2012, is a prime example. In that case, petitioner Cory Maples was convicted of murder and sentenced to death in 1997 in Alabama. (10) Maples sought post-conviction relief in state court, alleging ineffective assistance of counsel and other trial and penalty-phase errors. (11) His petition was prepared on a pro bono basis by two associates of the New York law firm, Sullivan & Cromwell. (12) While the petition was pending in Alabama, the two associates left the firm for other positions that prevented them from continuing to represent Maples, but without advising him they were no longer his lawyers, filing a motion to withdraw, arranging for new counsel, or even notifying the Alabama courts of the change in their status.' (3) When the Alabama trial court denied Maples' petition, it sent notices of the decision to the associates at Sullivan & Cromwell, but because they had left the firm, the mailroom there returned the notices unopened to the court. (14) The time ran out for Maples to appeal the trial court denial without Maples even knowing he no longer actually had a lawyer. (15) Subsequently, after learning from the Alabama prosecutor's office that he had lost in trial court and that the time to appeal had expired, Maples, represented by new counsel, filed a federal habeas petition." (1) The district court dismissed the petition on the ground that Maples had procedurally defaulted--by failing timely to appeal the Alabama trial court's order--and there was no cause to excuse the default. (17) The 11th Circuit affirmed. (18)

   Ordinarily, the circuit court ruling would be the end of the road for Cory Maples because even if it wrongly applied the law, that is not normally a basis for the U.S. Supreme Court to hear a case. (19) Yet the Court, in an opinion by Justice Ginsburg, reversed. (20) Her opinion favored Maples--but was deliberately and precisely tailored to him alone. "The sole question this Court has taken up for review," Ginsburg wrote, "is whether, on the extraordinary facts of Maples' case, there is 'cause' to excuse the default." (21) In holding that such cause did exist, the ruling tracked the exact circumstances of Maples' case in a way that precluded (virtually) any other defendant from benefiting from the decision. Here is the meat of the ruling:

   In the unusual circumstances of this case, principles of agency law and fundamental fairness point to the same conclusion: There was indeed cause to excuse Maples' procedural default. Through no fault of his own, Maples lacked the assistance of any authorized attorney during the 42 days Alabama allows for noticing an appeal from a trial court's denial of postconviction relief.... [H]e had no reason to suspect that, in reality, he had been reduced to pro se status. Maples was disarmed by extraordinary circumstances quite beyond his control. He has shown ample cause, we hold, to excuse the procedural default into which he was trapped when counsel of record abandoned him without a word of warning. (22) Notice all of the elements ("the extraordinary facts," the "unusual circumstances") that in the Court's view aligned to generate an outcome in Maples' favor: the lack of fault on his part that meant he had no lawyer representing him during the entire critical period in which an appeal could be filed; the lack of notice to Maples so that he had "no reason" even to "suspect" he lacked representation; the "extraordinary circumstances" beyond Maples' own control that "disarmed" him from acting; and his being "trapped" because he was "abandoned," without a single "word of warning." Lest there be any mistake that this doctrine was baked for Maples alone, Justice Alito, in a short concurring opinion, underscored the one-off nature of the decision. After identifying "eight unfortunate events" (23) that "combined" (24) to leave Maples without a lawyer, Alito concluded: "What occurred here was not a predictable consequence of the Alabama system but a veritable perfect storm of misfortune, a most unlikely combination of events that, without notice, effectively deprived petitioner of legal representation. Under these unique circumstances . . . petitioner's procedural default is overcome." (25) In sum, the Court produced a ruling for Cory Maples and him alone. While scores of other criminal defendants not named Cory Maples have cited the case, courts have had no trouble limiting it to the single beneficiary of the Supreme Court's decision. (26)

   Four observations about golden tickets bear mention. First, the Supreme Court can only intervene to provide relief to an individual defendant because it has the ability to limit the scope of a ruling all the way down to a single case. Without that option as an important element of the power to craft and control precedent, there would be no golden tickets. Without the ability to curtail precedential effect, the Justices would not grant relief to a Cory Maples, because doing so would open the door to other criminal defendants making similar claims upon the Court; and, worse--from the perspective of a Court that disfavors federal judges interfering with state criminal convictions (27)--to lower federal courts using the ruling to grant relief to other habeas petitioners at a clip that would outpace the Court's limited capacity for review. The ability to limit a ruling at the outset is essential if the Court is to intervene to help the single petitioner like Cory Maples.

   Second, however, golden tickets, while beneficial to the recipient, are of uncertain systemic value. There is no particular reason Cory Maples should be helped while thousands of other convicted criminal defendants--whose own cases could be spun into a story of misfortune and injustice--are denied the same remedy. The power to create a subprecedent allows the Court to perform a one-time act of mercy. But the price of issuing occasional golden tickets may be high. Random acts of kindness serve to highlight the...