The Problem of ‘Personal Precedents’ of Supreme Court Justices

WASHINGTON — Supreme Court docket justices, like most individuals, prefer to look like constant. Nobody needs to be considered a flip-flopper, an opportunist or a hypocrite.

Which means justices attempt to not disavow earlier authorized views, even ones that appeared in dissents, in opinions they wrote as appeals courtroom judges, in educational work, at their affirmation hearings and elsewhere.

This impulse, which a provocative new article calls “private precedent,” may be at odds with respect for precedent within the standard sense.

The pressure and legitimacy of such private precedents has seldom been explored, and the uncommon students who’ve thought of it have largely been important. “To consider one’s particular person observe file on a problem” in selections on whether or not to overrule precise precedents “presents an instance of political conduct,” Allison Orr Larsen, a regulation professor at William & Mary, wrote in a 2008 article.

The brand new article, to be revealed in The Harvard Regulation Evaluate, takes a special view, saying that “private precedent each does and may play a central position in Supreme Court docket observe.”

Its creator, Richard M. Re, a regulation professor on the College of Virginia, asserts that “a choose’s private regulation operates as regulation — certainly, because the regulation’s constructing block.”

There may be little query that justices worth what Justice Stephen G. Breyer referred to as, in a current ebook, “the significance of non-public consistency.”

“A choose who has beforehand expressed a view, even on a reasonably minor technical matter, might hesitate to hitch totally a majority opinion expressing a opposite view on the minor matter, lest the authorized public suppose that the choose is being inconsistent,” Justice Breyer wrote.

If that’s true of minor issues, it’s certainly true of great ones.

The longer justices serve, the extra private precedents they accumulate. Late within the tenure of Justice William J. Brennan Jr., who was on the Supreme Court docket for almost 34 years, “his huge physique of opinions guided his clerks besides within the uncommon cases when a brand new difficulty arose,” Seth Stern and Stephen Wermiel wrote of their 2010 biography of the justice, who retired in 1990 and died in 1997.

“The tenet,” the biographers wrote, “was to not contradict his prior opinions.”

Legal professionals actually take account of non-public precedent. In a significant case on the scope of the Second Modification that was argued in November, the events’ briefs centered closely on a dissent Justice Brett M. Kavanaugh had issued when he was an appeals courtroom choose. The federal authorities’s transient cited the dissent 9 instances.

“To heap consideration on such an clearly nonprecedential opinion is extraordinary — and not possible to sq. with any formal rule of precedent,” Professor Re wrote.

One other appeals courtroom dissent, this one from Justice Amy Coney Barrett, additionally figured within the briefs, with the challengers citing it thrice.

Dissents have, after all, no precedential worth within the standard sense. However they actually matter because the justices’ private precedent.

Even justices’ scholarly writings play a component in Supreme Court docket briefs. Chief Justice John G. Roberts Jr. wrote a little-noticed article on standing in 1993, greater than a decade earlier than he joined the Supreme Court docket in 2005. It was not cited in a Supreme Court docket transient till 2006. Since then, it has been cited greater than 50 instances.

Private precedents may help assist institutional ones, as long as the courtroom’s membership doesn’t change. In spite of everything, as Justice Antonin Scalia wrote in a 1989 dissent, “overrulings of precedent hardly ever happen with out a change within the courtroom’s personnel.”

Certainly, there have been solely 5 events on which the Supreme Court docket overruled one among its selections with out an intervening change in its membership, in line with a tally by Michael J. Gerhardt, a regulation professor on the College of North Carolina.

“The sluggish price at which seats flip over itself encourages continuity in case regulation,” Justice Barrett wrote in a 2013 regulation evaluate article earlier than she joined the courtroom. “Justices do change their minds, however overruling is extra doubtless when recent eyes see a case.”

A opposite view was expressed in a 2008 ebook by Richard A. Posner, a outstanding federal appeals courtroom choose who retired in 2017. “If altering judges adjustments the regulation,” he wrote, “it isn’t even clear what regulation is.”

In an interview, Professor Re mentioned that “institutional precedent considerably is dependent upon and is usually checked by a special sort of precedent, private precedent, that’s extra elementary and that has good options and dangerous options and that we have now to handle.”

“You’ve acquired to reckon with it,” Professor Re mentioned of non-public precedent. “You’ll be able to’t want it away.”

Professor Larsen, whereas praising Professor Re’s article as refined and measured, mentioned that “he undersells the implications of non-public precedents for the courtroom as an establishment.”

“The endgame,” she mentioned, “is an much more polarized Supreme Court docket with little or no room for consensus and customary floor.”