Judicial power consists of "jurisdiction," the authority to speak (dictio) the law (ius). (1) As Chief Justice Marshall articulated the judge's role, it is "the province and duty of the judicial department to say what the law is." (2) In defining the judiciary's "province," Marshall metaphorically staked out a territory in which courts may govern. Within that territory, courts speak the law with authority, resolving disputes and binding other actors.
The metaphor of a judicial "province" carries with it the implication of boundaries to the judge's authority. Courts may speak the law authoritatively only within limits fixed by the Constitution and other legal constraints. Two borders have historically proved especially important in defining judicial power. First, courts may not issue rulings on their own initiative. (3) They address legal issues only in the course of resolving cases brought to them by others. (4) Second, in resolving litigated disputes, courts may only properly speak the "law," (5) employing sources and modes of reasoning recognized as "legal." Judges lack the freedom of legislators to pursue unguided policy preferences. (6)
The power of courts to "say what the law is" must be harmonized with the legitimate law-speaking powers of other governmental actors. After all, one might just as properly say that it is "the province and duty of the [legislative] department" to "say what the law is," though at a higher level of generality than courts. (7) The "executive department" can similarly be thought to speak the law when it issues regulations or resolves administrative proceedings. (8)
Structural provisions of the Constitution and separation of powers principles allocate the law-speaking power among legislators, courts, and executive officials. Congress may enact legislation, provided it follows Article I procedures. (9) However, courts or executive agencies generally must apply the statute to particular disputes. The prohibition on legislative vetoes bars Congress from case-by-case application of a statute unless it satisfies the demanding constitutional process for passing new legislation. (10) At the same time, the authority of judicial and executive officials to speak the law in resolving statutory disputes can be superseded if Congress amends the underlying statute. (11)
Even in the unique context of constitutional law, care must be exercised to discern the sometimes subtle boundaries between legitimate law speaking by judges and other governmental actors. The "political question" doctrine, for instance, recognizes that some constitutional questions lie outside the judicial province, falling within the domain of the political branches. (12) More controversially, "departmentalists" would accord some level of autonomy in constitutional interpretation to executive and legislative officials, even on issues previously addressed by the courts. (13)
This Article considers the law of precedent, including the doctrine of stare decisis, the distinction between holding and dictum, and associated principles governing the extent to which judicial resolution of a legal issue binds later courts. The analysis begins with an observation: rules of precedent serve as a mechanism for allocating the power to proclaim the law. Here the concern is not distribution of power among branches of the federal government. Rather, the law of precedent allocates power among courts of the past, present, and future. Stare decisis and subsidiary principles regulate the extent to which judges can explicate legal rules in a way that resolves not only the case before the court, but also later cases involving litigants and facts as yet unknown. (14) The law of precedent, then, involves a transtemporal application of separation of powers principles, allocating power among judges serving at different points in time. (15)
The rule of stare decisis treats precedent as a constraint on successor judges. (16) A later judge does not write on a blank slate, but must harmonize her decisions with the work of those who previously held either the same office or a superior office in the judicial hierarchy,iv From this feature of precedential reasoning flows the familiar list of values served by stare decisis, such as promoting the rule of law and protecting reliance. (18) When respected, rules of precedent advance stability in the law, reducing the potential for arbitrary or unpredictable action by later judges. (19)
Without minimizing these benefits of presumptive adherence to precedent, this Article emphasizes a significant countervailing theme, one clearly present in the case law, but seldom highlighted in the academic literature. Just as the law of precedent gives earlier judges a check on the power of those who come behind, the doctrine sometimes allows later judges to minimize the precedential effect of earlier decisions, providing a counterbalancing check on their predecessors. (20) The law of precedent, as applied by the United States Supreme Court, empowers sitting judges to police overreaching in previous opinions and to diminish the impact of rulings issued in the absence of time-honored decisionmaking practices. This power conferred on later judges serves a disciplinary function, encouraging precedent-setting courts to remain within the proper scope of their authority and to employ processes calculated to produce thoughtful and defensible opinions.
As we develop this thesis, it will help to have a working understanding of what we mean by the law of precedent. The relevant doctrine centers on the rule of stare decisis, the presumption that a legal conclusion in an earlier opinion continues to govern later cases in the same or inferior courts. (21) Stare decisis has not been understood as "an inexorable command" or a "mechanical formula," but rather as "a principle of policy." (22) Subsidiary principles implement and qualify the stare decisis presumption, offering guidance regarding when and to what extent a prior ruling merits precedential effect. These subsidiary principles often seem characterized less by bright lines than by consideration of multiple relevant factors. (23)
Since the rule of stare decisis attaches only to a court's previous holdings, the distinction between holding and dictum lies at the heart of the law of precedent. (24) In the quest to honor prior holdings, ambiguities can arise regarding the scope of an earlier ruling. (25) Judges often possess a degree of leeway in determining how narrowly or broadly a previous opinion should be ready. (26) Circumstances may also influence the precedential weight accorded a prior holding. (27) The strength of the presumption that an earlier legal conclusion should be followed in later litigation can vary with the conditions under which it was announced.
This Article contends that the subsidiary principles implementing the rule of stare decisis often empower later judges to counter overreaching and less-than-careful decisionmaking by earlier courts. Applying the distinction between holding and dictum, a court can limit the scope of an opinion in which prior judges ambitiously addressed issues unnecessary for resolution of the earlier case. (28) Likewise, the Supreme Court has used the law of precedent as a means to review the decisionmaking process associated with a prior opinion. When the Court has issued a ruling based on substandard briefing or truncated deliberations, or when it has failed to adequately explain the grounds for an opinion, later Justices have felt free to deny or minimize the precedential effect of the earlier decision. (29) The full weight of stare decisis attaches only when the precedent-setting court sticks to the task of resolving the case before it, on the basis of plenary briefing and argument, resulting in a reasoned opinion that cogently defends the court's conclusions on the issues addressed.
Just as the general rule of stare decisis allocates power to speak the law, the authority of later judges to ignore dicta and to evaluate the quality of predecessors' decisionmaking processes effectively allocates law-speaking power over time, checking the influence of the precedent-setting court. Authorizing later courts to discount dicta creates an incentive for judicial restraint and disables ambitious judges from imposing their will in hypothetically-imagined future cases. Allowing later courts to disregard or narrowly construe decisions that were poorly briefed or inadequately explained promotes careful and thoughtful decisionmaking. Thus, the pursuit of stability inherent in the doctrine of stare decisis is qualified by countervailing goals, such as encouraging judicial self-restraint and promoting thorough, well informed consideration of legal issues.
This Article will describe and defend the law of precedent's backward-looking limitations on stare decisis and consider possible implications for several issues likely to come before the Supreme Court in future litigation. Part I considers three widely accepted expectations regarding the role and operation of courts in our legal system. First, we establish courts to resolve disputes about the application of law to particular cases. (30) Second, in the course of resolving litigation, we expect courts to conduct an adequate investigation of the relevant facts and applicable law before reaching a conclusion, a function facilitated in appellate courts through the process of briefing, argument, and deliberation. (31) Third, we ask judges, particularly at the appellate level, to memorialize their conclusions in the form of a reasoned opinion explaining the outcome they reach. (32)
Part II shows how the Supreme Court has employed the law of precedent to enforce these expectations regarding the role and operation of courts. The Justices have felt free to ignore legal conclusions in a prior opinion that can be fairly characterized as dicta, meaning that the Court reached beyond its role of...