WASHINGTON — Supreme Court docket justices, like most individuals, wish to seem like constant. Nobody desires to be considered a flip-flopper, an opportunist or a hypocrite.
Which means justices strive to not disavow earlier authorized views, even ones that appeared in dissents, in opinions they wrote as appeals court docket judges, in tutorial 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 typical sense.
The pressure and legitimacy of such private precedents has seldom been explored, and the uncommon students who’ve thought-about it have principally been crucial. “To think about one’s particular person observe document on a problem” in selections on whether or not to overrule precise precedents “presents an instance of political habits,” Allison Orr Larsen, a legislation professor at William & Mary, wrote in a 2008 article.
The brand new article, to be revealed in The Harvard Legislation Evaluation, takes a special view, saying that “private precedent each does and may play a central function in Supreme Court docket follow.”
Its writer, Richard M. Re, a legislation professor on the College of Virginia, asserts that “a decide’s private legislation operates as legislation — certainly, because the legislation’s constructing block.”
There may be little query that justices worth what Justice Stephen G. Breyer referred to as, in a latest e-book, “the significance of non-public consistency.”
“A decide who has beforehand expressed a view, even on a reasonably minor technical matter, could hesitate to affix absolutely a majority opinion expressing a opposite view on the minor matter, lest the authorized public suppose that the decide is being inconsistent,” Justice Breyer wrote.
If that’s true of minor issues, it’s certainly true of serious 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 monumental 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 guideline,” 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 court docket decide. The federal authorities’s transient cited the dissent 9 occasions.
“To heap consideration on such an clearly nonprecedential opinion is extraordinary — and inconceivable to sq. with any formal rule of precedent,” Professor Re wrote.
One other appeals court docket dissent, this one from Justice Amy Coney Barrett, additionally figured within the briefs, with the challengers citing it 3 times.
Dissents have, after all, no precedential worth within the typical 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 occasions.
Private precedents may help help institutional ones, as long as the court docket’s membership doesn’t change. In spite of everything, as Justice Antonin Scalia wrote in a 1989 dissent, “overrulings of precedent not often happen with no change within the court docket’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 keeping with a tally by Michael J. Gerhardt, a legislation professor on the College of North Carolina.
“The sluggish charge at which seats flip over itself encourages continuity in case legislation,” Justice Barrett wrote in a 2013 legislation evaluate article earlier than she joined the court docket. “Justices do change their minds, however overruling is extra seemingly when contemporary eyes see a case.”
A opposite view was expressed in a 2008 e-book by Richard A. Posner, a outstanding federal appeals court docket decide who retired in 2017. “If altering judges adjustments the legislation,” he wrote, “it isn’t even clear what legislation is.”
In an interview, Professor Re mentioned that “institutional precedent considerably relies on and is usually checked by a special type of precedent, private precedent, that’s extra basic and that has good options and dangerous options and that we’ve to handle.”
“You’ve obtained to reckon with it,” Professor Re mentioned of non-public precedent. “You may’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 court docket 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.”
