The scope of precedent.

• Author: Kozel, Randy J.
• Position: Introduction through III. Reconceptualizing Precedential Scope A. Distinguishing the Horizontal and Vertical Spheres, p. 179-204

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court's broad pronouncements. These phenomena cannot be explained by--and, indeed, oftentimes subvert--the classic distinction between binding holdings and dispensable dicta.

This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent's forward-looking effect should not depend on the superficial categories of holding and dictum. Instead, it should reflect deeper normative commitments that define the nature of adjudication within American legal culture.

The account that emerges is one in which the scope of precedent is inextricably linked to interpretive theory and constitutional understandings. Divergent methods of interpretation, from originalism to common law constitutionalism and beyond, carry distinctive implications for describing a precedent's constraining effect. So, too, do various methods of interpretation in the statutory and common law contexts. Ultimately, what should determine the scope of precedent is the set of premises--regarding the judicial role, the separation of powers, and the relevance of history, morality, and policy--that informs a judge's methodological choices.

Table of Contents INTRODUCTION I. PRECEDENT IN PRACTICE A. From Persuasion to Deference B. Starting Points: The Holding-Dicta Distinction C. Precedential Breadth at the Supreme Court 1. Unmistakable Dicta 2. Doctrinal Frameworks 3. Codifying Statements 4. Supporting Rationales D. Precedential Breadth in the Lower Federal Courts II. CLARIFYING THE INCLUSIVE PARADIGM OF PRECEDENT A. Inclusive Versus Infinite B. Dichotomy Versus Continuum C. Superficial Labels Versus Theoretical Drivers III. RECONCEPTUALIZING PRECEDENTIAL SCOPE A. Distinguishing the Horizontal and Vertical Spheres 1. Vertical Constraint 2. Horizontal Constraint B. The Costs and Benefits of Constraint 1. Potential Benefits of Constraint 2. Potential Costs of Constraint 3. Differential Approaches to Scope C. Precedential Scope and Interpretive Foundations 1. Common Law Constitutionalism 2. Originalism 3. Pragmatism 4. Conventionalism 5. Other Normative Commitments and Constitutional Understandings 6. Summary: Precedential Scope and the Supreme Court Role D. The Scope of Statutory and Common Law Precedents 1. Statutory Precedents 2. Common Law Precedents IV. REFORMING PRECEDENTIAL SCOPE A. Analytical Transparency B. Jurisprudential Consistency V. COMPARATIVE INSTITUTIONAL CONSIDERATIONS A. Circuit Law B. State-Court Interpretation CONCLUSION Introduction

Whether to overrule a dubious precedent is one of the most significant and complex questions that judges confront. (1) The topic has, quite properly, received considerable attention in case law, (2) scholarly commentary, (3) and political discourse. (4)

But there is a complementary question of equal significance--and equal complexity--whose nuances have received less attention in recent scholarship. (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 deviating 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 corporation's right to participate in political referenda apply to candidate elections? (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 account 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 disregarded. 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 principles. 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 rationales. (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 warnings 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 consistent 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 commentators who view the Constitution as imposing strict limits on judicial lawmaking, the inclusive paradigm of precedent creates problems by infusing much of what judges say with constraining force. The same is true for those who view the Constitution's original meaning as paramount to judicial precedent in all but the narrowest circumstances. But for others, the virtues of guiding lower courts and respecting prior judicial pronouncements 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 intrinsic 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) Similarly, a court cannot fully evaluate whether a decision applies to a new dispute 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 Supreme Court precedents by subsequent federal courts, including the Supreme 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 decisions 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 constraint 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...