The Scope of Precedent

• Author: Kozel, Randy J

Introduction

Whether to overrule a dubious precedent is one of the most significant and complex questions that judges confront.' The topic has, quite properly, received considerable attention in case law,2 scholarly commentary,3 and po- litical discourse.4

But there is a complementary question of equal significance-and equal complexity-whose nuances have received less attention in recent scholar- ship.5 That question is whether a given precedent applies to a newly arising dispute.6 If the answer is yes, the prospect of overruling becomes relevant. If the answer is no, it is unnecessary to assess the costs and benefits of deviat- ing from settled law. A precedent's scope of applicability thus presents a matter of threshold importance.7

Issues of precedential scope are ever present and often controversial. Should a decision dealing with the use of affirmative action at the University of Michigan apply to the University of Texas notwithstanding differences in the schools' demographic conditions?8 Should a decision protecting a corpo- ration's right to participate in political referenda apply to candidate elec- tions?9 To the rights of labor unions?10 Should a decision striking down a federal statute that rejects same-sex marriage apply to comparable statutes enacted by the states?11

These questions aim to define the scope of precedent. The standard ac- count of scope begins with the distinction between binding holdings and nonessential dicta: judicial holdings are entitled to deference from future courts, while everything else is dispensable.12 Indeed, the Supreme Court recently reaffirmed that dicta from its prior opinions may be freely disre- garded. Simply because the Court has "once written dicta calling a tomato a vegetable" does not mean that subsequent judges are "bound to deny that it is fruit forever after."13

Nevertheless, the Court's practice often departs from these general prin- ciples. The inconsistency runs deeper than the well-chronicled difficulty of sorting dicta from holdings in particular cases.14 To be sure, the Court goes to great lengths to characterize certain statements as mere dicta that can be jettisoned without reservation. But in many other cases, the Court defers to elements of its prior opinions that extend far beyond the narrow application of a legal rule to a discrete set of facts.15 Those elements include doctrinal frameworks, elaborate judicial instructions, and broadly articulated ratio- nales.16 The phenomenon is even more pronounced in the lower federal courts, many of which unabashedly defer to Supreme Court dicta. Recent scholarship underscores the point by highlighting the porous nature of the line between holdings and dicta in practice.17 The result is the prevalence of an inclusive paradigm of precedent in which binding effect attaches to a vast array of judicial propositions.

The inclusive definition of precedent is on display when the Supreme Court defers to a wide-ranging doctrinal framework in applying the Bill of Rights against the states.18 It is on display when the Court's detailed warn- ings for criminal suspects receive deference in subsequent adjudication.19 And it is on display when a federal appellate judge suggests that Supreme Court dicta foreclose her independent interpretation of the Establishment Clause.20

In some situations, broad interpretations of precedent are arguably con- sistent with the black-letter definition of judicial holdings as propositions that are "necessary" to a case's result.21 But that fact does not justify the inclusive paradigm of precedent. It simply demonstrates the ambiguity that resides within the terms "holding" and "dicta," terms that create far greater potential for mischief than illumination. The dangers are exacerbated when, as is often the case, the terms are deployed in isolation from the underlying principles that give them meaning. The proper question is not whether a particular judicial statement is better described as holding or dictum. Rather, it is why holdings should be entitled to deference-and why dicta should not-in the first place.

This question cannot be answered in the abstract. It is impossible to provide a complete account of precedential scope without adopting, either overtly or implicitly, a specific vision of the function of precedent and the nature of the judicial role. Such a vision will be informed by matters of interpretive methodology and constitutional theory. For jurists and com- mentators who view the Constitution as imposing strict limits on judicial lawmaking, the inclusive paradigm of precedent creates problems by infus- ing much of what judges say with constraining force. The same is true for those who view the Constitution's original meaning as paramount to judi- cial precedent in all but the narrowest circumstances. But for others, the virtues of guiding lower courts and respecting prior judicial pronounce- ments serve to justify the inclusive paradigm.22

Perspectives on the scope of precedent are thus intertwined with deeper principles of interpretation and adjudication. A judicial opinion has no in- trinsic meaning. Its effect depends on the interpretive lens through which it is viewed. Think of it like a quantum theory of precedent: the interpretive sympathies of the particular observer end up determining what is binding and what is not.23 A court cannot assess whether a flawed decision should be overruled without consulting interpretive touchstones to determine how problematic it would be to leave the offending decision on the books.24 Simi- larly, a court cannot fully evaluate whether a decision applies to a new dis- pute without asking questions such as whether the Supreme Court should play an active role as the federal judiciary's manager; whether the lower courts are bound to act as the Supreme Court's faithful agents rather than charting their own course; and whether the Constitution places meaningful limits on the power of today's judges to constrain those of tomorrow.

Many of these questions draw on the unique role and structure of the federal judiciary. This Article accordingly focuses on the treatment of Su- preme Court precedents by subsequent federal courts, including the Su- preme Court itself. Properly analyzing the implications of precedent requires attention to specific institutional features that are not shared by all courts. To take just one example, the argument for interpreting Supreme Court de- cisions broadly may be stronger with respect to federal appellate courts than it is with respect to state supreme courts, because the constraint of state courts raises unique issues for the federal-state balance.25 More generally, the intractable nature of debates over precedential scope arises in part from their formulation in abstract terms. Examining the ramifications of con- straint in light of the specific characteristics of particular courts makes the puzzles of precedent at once more manageable and more responsive to context.

This Article proceeds in five stages. Part I examines the treatment of precedential scope as a matter of contemporary federal practice. It explains how the prevailing definition of precedent is capacious and inclusive, imbu- ing a wide range of judicial propositions with binding effect. Part II adds precision by exploring the inclusive paradigm's assumptions and boundaries.

Having provided a descriptive and analytical account of the scope of precedent, the Article turns in Part III to evaluating the inclusive paradigm and comparing it with a more restrictive approach. That project requires engaging with fundamental interpretive choices and constitutional under- standings, both of which determine how the costs and benefits of preceden- tial constraint should be perceived and weighed against one another.

Drawing on the relationship between precedential scope and interpre- tive theory, Part IV offers two proposals for doctrinal reform. The initial goal is enhanced analytical transparency regarding the scope of precedent- a development that becomes plausible once the role of interpretive theory and constitutional understandings comes into focus. The second, more am- bitious proposal seeks not just transparency but analytical consistency, com- bined with recognition of the serious challenges posed by individual judges' interpretive vacillation and by the Supreme Court's institutional reluctance to commit itself to any unified method of legal interpretation. While the Court's interpretive pluralism is a formidable obstacle to developing an ef- fective doctrine of stare decisis, the pursuit of transparency and consistency is a promising, although imperfect and incomplete, means of improving the existing jurisprudence.

Finally, Part V looks beyond the Supreme Court to explain how debates over the scope of precedent depend on the unique structural characteristics of the courts that issue decisions and the courts that apply them.

1. Precedent in Practice

   It is a truth universally acknowledged that a judge who is asked to re- solve a thorny dispute must be presented with competing arguments from precedent.26 One party will claim that the body of relevant case law de- mands, or at least strongly suggests, a certain outcome. The opposing party will contend that the proper inference from precedent is actually quite the contrary. And so the meaning of precedent will be placed before the judge for resolution.27

   1. From Persuasion to Deference

      The role of precedent depends on two concepts that are interrelated but analytically distinct. The first is precedential scope, which determines whether a prior judicial statement applies to the dispute presently under consideration. The second is precedential strength, which determines how much deference is owed to prior statements that are, in fact, applicable. This Article's primary concern is the threshold matter of scope. Before turning to that issue, however, I offer a brief introduction to the nature and...