Precedent, SCOTUS, and the Rule of Lawlessness

Today at noon I am on a panel at AALS 2024 on the role of precedent at the Supreme Court and how a professor's views on that issue should be presented in the classroom (if at all). The other panelists are Larry Solum, Dick Fallon, Tara Grove, and Darrell Miller. Aaron Tang and Jennifer Mascott are the discussants. Below is a rough summary of what I intend to say.

How seriously, if it all, the Court takes its own precedent is a vitally important question because if the Supreme Court reverses its own cases too frequently, people can sensibly question whether we are governed by the rule of law or the rule of justices. Whether the doctrine exists at all at the Court apart from stylistic bromides used by the justices from time to time is a serious question. If the answer to that question is no, as I think it is, and if changing judges changes law, which at the Court it obviously does, do we even know what law is? 

Citizens United, Dobbs, Lawrence, Adarand, Batson, Katz, Garcia, Gideon, Darby, Brown, Seminole Tribe, and West Coast Hotel are just a few of the many important cases known by one party only (like Michael, Shaq, and LeBron are one name players) in which the Court has reversed prior doctrine. The reality, on the ground, is that whether by explicit reversals, or through slicing and dicing, or through subtle and clever factual and legal distinctions, the Court has reversed itself in virtually every major category of litigated constitutional law based on the values of the Justices sitting at the time.

The cases listed above do not involve minor or peripheral areas of constitutional law and neither are they outliers when it comes to reversals of prior precedents. In cases involving abortion, affirmative action, free speech, the commerce clause, church/state, gun rights, criminal procedure, and sovereign immunity, among many, many others, the Court has reversed itself dramatically over the years. That reality should weaken any argument that I have erroneously or misleadingly left out the many cases the Court has not reversed. Where the justices care, on the most pressing and important questions, stare decisis has played little or no substantive role.

Thoughtful and serious scholars of all political stripes have tried to devise standards, guidelines, and tests for applying precedent for the justices. But as is true for virtually all theoretical pre-commitments, those factors have not and likely will not matter to the justices, who have shown time and time again that they will do what they want to do today and not worry too much about yesterday. The justices will display some rhetorical angst when overruling precedent but this is just for show, and is a huge waste of time and resources.

Would we better off admitting the truth that the Court reverses itself if it feels the substantive issue at play is more important than pretending that precedent matters? Or is it important to keep up the pretense that precedent matters either so the justices might at some subconscious level be more restrained or because if we allow the Court to decide each issue anew without the pretense that prior law matters the rule of law will be seriously damaged? My preference is transparency above all else but others may feel differently.

How should someone who is skeptical about the role of precedent incorporate that idea into the classroom? On the one hand, we don’t want to make our students too cynical but on the other they need to be realistic. What I try to do is not call too much attention directly to the many twists, turns, and reversals we discuss but let the students see it for themselves. Eventually, this leads to a discussion of the role stare decisis actually plays and should play. It does not take much to get the students to see that maybe the idea of precedent at the Court matters on paper but not in real life. I don’t usually have time to go far beyond recognition of the problem and a discussion about its important stakes.

Finally, although some will disagree, my reading of Supreme Court history is that it is about 95% living constitutionalist and 5% originalist. Whatever your view of the accuracy of that description, there is no question constitutional law is full of enormously important non-originalist precedents. For originalists, I think this presents an enormous problem--one that should not be hidden from students (or non-con law professors). 

The conflict between originalism and stare decisis suggests that neither precedent nor originalism meaningfully constrains the Supreme Court. And, since few suggest that common law constitutionalism, pluralism, or living constitutionalism can meaningfully limit judicial discretion, we are left with an institution whose only constraint is what the American people will accept, which is not much of a constraint, and should not be the way a court of law operates.