SUPREME COURT NORMS OF IMPERSONALITY.

• Author: Larsen, Allison Orr
• 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).

INTRODUCTION

In his new book, Settled Versus Right: A Theory of Precedent, Professor Randy Kozel assumes a rare role for law professors; he serves as a helpful collaborator rather than a snarky critic. Professor Kozel seeks a commitment to the impersonal features of Supreme Court decisions and a retreat from individual disputes over interpretive philosophy when it comes to discussion of precedent. His optimism is contagious, and Kozel has made bold strides towards a "second best stare decisis" that can be applied regardless of vast disagreement on the merits. Cynics may remain unpersuaded that nine individual Justices can transcend interpretive disagreements and commit to a communal understanding of a doctrine of precedent. But even for those cynics, Professor Kozel's work provides a powerful lesson about norms. The Supreme Court is more than just a building across from the Capitol that houses nine individual lawmakers. As a two hundred and thirty-year-old institution with a rich tradition of its own, the Court has developed a set of distinct norms over time. From "the rule of four" (not needing a majority to grant cert) to the taboo of vote-trading, to the use of a plural noun when referring to past decisions, to the expectation that every word change in a draft opinion merits a re-circulation, the Court has developed its own norms of impersonality--norms that emphasize the "we" over the "I's."

This Review will explore Supreme Court norms that both help and hinder Professor Kozel's aspiration for impersonality at the Court. I will reiterate my old complaint about "self stare decisis"--the habit of reiterating a dissenting view each time an issue presents itself again; and I will offer a new norm when it comes to discussion of precedent. Even if the Justices can't agree on whether a precedent is worthy of overruling, it seems a modest request to suggest such discussions happen at the outset, perhaps in their own initially circulated opinion or dedicated time at Conference. Bifurcating the discussion in this way (separating the discussion of precedent from the discussion of the merits) will help abate the temptation to gloss over the precedential discussion in order to get to the particulars of the case at hand. My hope is that norm changes such as these will further Professor Kozel's laudable goal of changing "attitudes" and will capture many of the benefits he articulates that arise from demanding a common set of playing rules for nine individual decisionmakers.

1. WHY IS IMPERSONALITY IMPORTANT?

   An important premise of Professor Kozel's new book is that a collective doctrine of stare decisis is critical to demonstrating that the Constitution "truly is more than what five Justices say it is" (p. 5). His goal is to create a theory of stare decisis that is "designed to enhance the stability and impersonality of constitutional law" (p. 6). And he makes a powerful case for why this goal is an important one.

   Professor Kozel argues that precedent has value in conserving resources, acknowledging our limitations as individual decisionmakers, treating similar cases in a similar way, and furnishing common ground for justices who often disagree (pp. 36-45). But, to me, the most compelling reason Professor Kozel offers for a communal understanding of precedent is its part in bolstering what Professor Kozel calls "impersonality" at the Supreme Court. By "impersonality," Kozel means making "judge specific characteristics less salient in determining legal rights" (p. 41). As he elegantly explains,

   to follow the decisions of one's predecessors is to embrace a conception of a court continuing over time. By deferring to precedent, a [J]ustice highlights her membership in a larger institution that predates her and will continue long after she is gone. . . . This is another way of saying the rule of law prevails over the rule of men and women (pp. 41-42). It is too easy to shorten this rationale (as we often do) to the simple--and all too loaded--word, "legitimacy." The Court must keep more or less consistent over time, the common argument goes, in order to maintain its stature in the eyes of the public. (3) But, as Professor Kozel helpfully reminds us, this argument undersells the value of impersonality quite a bit. What hangs in the balance of the precedent debate is more than just an approval rating for the Justices in a national opinion poll. The stakes are much higher than that. In Professor Kozel's words, driving the commitment to impersonality at the Court is "the principle that all government officials, including judges, are bound by rules" (p. 42). Debates about precedent are so important, therefore, because the rule of law is so important.

   The rest of Professor Kozel's book is devoted to developing a theory of what he calls "second best stare decisis"--a theory that operates independently of any interpretive methodology and seeks to unify judicial voices that find themselves so often in discord. Professor Kozel seeks to offer a set of rules about precedent that many can join as a second-best solution (second-best to the result that would be reached under his or her preferred methodology). The goal of second-best stare decisis is to prevent discussions of precedent from getting bogged down into the merits and "becoming an echo chamber for controversial assertions about which theory of constitutional interpretation is best" (p. 139).

   There are likely some cynics who find this laudable goal a bit out of reach. The cynic's concern is that no one Justice will check his interpretative baggage at the door in order to truly engage with the question of precedent in a way that is detached from his other commitments. The fear is that a communal doctrine of stare decisis will not constrain at all; a Justice will just manipulate the seemingly objective factors of second best stare decisis (reliance interests, factual change and the like) in order to reach the result that best aligns with his favored interpretive philosophy or normative priors or even the outcome that he wants to reach in the individual case.

   But even for those cynics, Professor Kozel's work sheds light on an important problem and a potential solution. For hundreds of years, the Justices of the Supreme Court have created and maintained important norms of impersonality. They act and speak as a "we" over time. Even if those norms don't constrain in any technical sense, they enact a powerful force of habit.

   To take an analogy that may speak to dog lovers, a dog on a leash will sometimes stay still in the park even when there is no one holding on to the leash's handle. Because the dog is accustomed to the constraint, it toes the line even when it need not. (4) So, too, can norms of impersonality act to constrain a Justice even when it does not formally bind her. The Court is an institution with a rich history and a prized internal reputation for objectivity and fairness. Perhaps it is time to leverage those norms of impersonality to change how the Justices discuss precedent.

2. EXISTING NORMS OF IMPERSONALITY AT THE SUPREME COURT

   When a new member of the Court gets sworn in and walks up those stairs at number One First Street for the first time, he or she will...