The scope of precedent.

• Author: Kozel, Randy J.
• Position: III. Reconceptualizing Precedential Scope B. The Costs and Benefits of Constraint through Conclusion, with footnotes, p. 204-230

2. The Costs and Benefits of Constraint

   The next step is analyzing the costs and benefits of constraint in both the vertical and horizontal domains.

   1. Potential Benefits of Constraint

      In the vertical context, precedential constraint facilitates hierarchical control, judicial efficiency, and the dissemination of guidance to lower

      courts. (167) When precedents are construed broadly, more issues are removed from the sphere of reasonable debate. Inferior courts are obliged to treat those issues as off the table regardless of any substantive reservations. Such a "maximalist" (168) view of precedent can reduce decision costs for subsequent courts by increasing the number of propositions that must be taken as given. A judge might bristle at the fact that she has no authority to depart from the Supreme Court's utterances, just as a lawyer might lament the fact that inferior courts are powerless to accept an argument in favor of overruling. But the lack of discretion simplifies proceedings in the inferior courts and streamlines the resolution of disputes. (169)

      Further, vertical constraint promotes adjudicative uniformity across different courts, jurisdictions, and geographic regions. (170) Broad vertical constraint should lead to fewer lower-court anomalies that the Supreme Court will need to bring into line (or allow to linger). This feature can be particularly attractive when the incidence of superior-court review is infrequent, as is the case at the U.S. Supreme Court due to its light docket. (171) Adjudicative uniformity is arguably a good in itself as a facilitator of the fair and equitable treatment of similarly situated parties. (172) It is also a means of enhancing the legal regime's predictability for litigants, attorneys, and other stakeholders.

      The benefits of following precedent are different in the horizontal context, where the Supreme Court grapples with the impact of its own past decisions. For starters, the control rationale that plays a pivotal role in the vertical context disappears with respect to horizontal precedent. Although the efficient operation of the judicial system may require some Supreme Court control over inferior courts, it does not follow that the Supreme Court justices of today must be able to hem in the justices of tomorrow. In addition, the shift from vertical to horizontal precedent removes the interest in national uniformity. In horizontal operation, Supreme Court precedent does not harmonize conflicting rules that would otherwise exist simultaneously. What is sought is compatibility between the current Court and its former self.

      Rule-of-law implications also take on a unique valence in the context of horizontal precedent. Invoking a preexisting principle in order to resolve a hot-button debate can promote the rule of law by emphasizing the primacy of general, overarching norms that transcend the ideologies and idiosyncrasies of individual justices. (173) Deference to past decisions helps to combat the notion that the law has no essence or principle apart from the personalities of the justices who happen to occupy the bench at any given time. (174) By deferring to its precedents, a court speaks with one voice.

      Beyond these context-dependent implications, the vertical and horizontal axes share certain characteristics with respect to the benefits of precedential constraint. Whether the deferring body is an inferior court or the Supreme Court, respect for the past can foster stability. (175) Justice Brandeis's famous statement about the value of allowing the law to "be settled" continues to resonate. (176) When adjudicative change is relatively infrequent and moderate, the disruption of expectations is held in check. (177) The stability of the legal order is bolstered, providing a firmer backdrop for developing informed understandings, planning future affairs, and controlling transition costs. (178) In Justice Breyer's words, it is this stability that transforms an aggregation of judicial decisions into a workable and integrated legal "system." (179)

      Concerns about stability and predictability are so often recited as to seem almost commonplace, but that does not diminish their importance. To the extent that precedents remain substantially in flux, it will be difficult for lawyers to dispense legal advice and plan sensibly for the future. Courts also face the grim prospect of endlessly examining previously settled points rather than focusing on newly arising complexities in litigation. These factors do not necessarily mean that the scope of precedent must be defined broadly; their ultimate relevance depends on the matters of interpretive theory and constitutional understanding that are addressed below in Section C. Still, the benefits of stability and predictability loom large over discussions of precedential effect. (180)

      Finally, note that it would be an oversimplification to conceptualize debates over precedential constraint as a zero-sum game between earlier courts and later ones. Later courts--whether subsequent iterations of the same court in the horizontal context or courts of inferior rank in the vertical context--may sometimes prefer that precedents be defined inclusively. One explanation for this preference is the conservation of resources that occurs when a preexisting proposition is binding upon future tribunals. (181) In addition, and contrary to the more common trope of "activist" judges seeking to impose their ideological preferences on the law, some judges may prefer to avoid controversy, for reasons ranging from uncertainty about their conclusions to a simple desire to elude the spotlight. (182) Those judges may appreciate the fact that their most divisive decisions can plausibly be dressed in the trappings of precedent. (183) While some judges may resent broad constraint, others will welcome it, at least occasionally.

   2. Potential Costs of Constraint

      In both vertical and horizontal operation, precedent creates the risk of entrenching erroneous rules. When today's court is compelled to accept yesterday's unsound decision, society incurs a loss from the perpetuation of the incorrect rule. Rule-of-law costs can also arise from the conscious preservation of judicial gloss that misconstrues the underlying legal authority. (184) Abiding by erroneous precedents can even threaten democratic values by creating distance between judicial interpretations and "the collective judgments that our representatives have authoritatively expressed." (185)

      The risk of error entrenchment is particularly acute when precedents are defined inclusively. It is true that numerous propositions are likely to have received serious consideration notwithstanding the fact that they are generalized, nonessential, or peripheral. Indeed, there is reason to suspect that, in some cases, the Supreme Court's affirmative decision to "reach out" to address a counterfactual or ancillary matter will reflect significant deliberation. (186) What is more, even the less considered elements of Supreme Court opinions tend to be thoroughly deliberated in absolute terms. The justices benefit from the insights of multiple inferior courts and from the efforts of first-rate attorneys, highly interested stakeholders serving as amici curiae, and capable law clerks and support staff. These institutional features might suggest that the Supreme Court's dicta are likely to be "better decision rules" than the lower courts would "independently generate" given their heavier dockets and lighter resources. (187)

      Yet even with extensive deliberation, Supreme Court justices may do a poor job of fashioning broad rules or opining on issues that are not closely connected to the facts at hand. (188) This concern is featured in the scholarship of Professor Sunstein, who often (although not invariably) (189) advocates an incremental approach designed to alleviate the dangers of "a lack of information," "changing circumstances," and "moral uncertainty." (190) Professor Sunstein argues that jurists should "focus their attention only on what is necessary to resolve particular disputes." (191) That minimalist approach bears notable similarities to then--Judge Roberts's embrace of case-by-case, "bottom up" judging during his Supreme Court confirmation hearings. (192) Both views exhibit skepticism about issuing generalized edicts rather than narrow, fact-intensive rulings. (193)

      Just as an inclusive reading of precedent carries implications for everything from uniformity to error entrenchment, an inclusive approach to precedent can affect the crafting of Supreme Court opinions. On one hand, greater confidence that peripheral and general statements will receive deference might encourage the justices to pepper their opinions with wide-ranging propositions. An inclusive view of precedent could thus be criticized as an engine of judicial activism, affording the justices unwarranted "power to render decisions on any issues they please." (194) On the other hand, the inclusive view might be associated with higher decision costs and "more fractured" opinions at the Supreme Court. (195) Enhancing the forward-looking resonance of peripheral or wide-ranging statements increases the likelihood that such statements will generate significant debate and prove difficult to articulate in a way that satisfies a majority of justices. (196)

      Other costs of precedential constraint are context dependent. By demanding adherence to a firm set of marching orders, vertical precedents can impede lower courts' ability to create value through judicial innovation. Inferior courts are often well positioned to evaluate the strengths and weaknesses of Supreme Court decisions. They observe the operation of those decisions in full factual and legal context rather than through the narrow, antiseptic frame provided by grants of certiorari on carefully crafted questions. Inferior courts also have more occasions to grapple with Supreme Court precedents than does the...