If the first rule of precedent is that prior decisions warrant respect, a close second is that no decision is untouchable. The Supreme Court has emphasized that deference to precedent is a sound practice rather than an unyielding obligation.Footnote 1 But the recognition that precedent is not absolute only gets us so far. We need more details about the strength of the Court's commitment to prior decisions even if those decisions rest on reasoning that is flawed (from the perspective of today's justices, that is).
The Court has not disappointed. On numerous occasions it has discussed the criteria for overcoming the presumption of fidelity to precedent. Its opinions offer an array of factors to inform the choice between retaining or overruling a dubious decision. We will examine those factors in depth in Chapter 6. Before doing so, it is useful to step back and think about precedential strength in more general terms.
I have framed the issue of precedential strength using Justice Brandeis' famous dichotomy between leaving matters settled and getting decisions right. There are always costs to disrupting expectations and replacing a legal rule. There are also costs to leaving a flawed precedent on the books. What I want to emphasize is the complexity that surrounds the question of how problematic a flawed precedent really is. The reasons for this complexity go beyond challenges of calculation. The more fundamental difficulty is that different interpretive theories lead to different conclusions about the types of consequences that are relevant to the stare decisis calculus.
Every theory of interpretation implies choices about which considerations are legally relevant. From some perspectives, constitutional interpretation is about finding solutions that are sensible and effective in pragmatic terms. A problematic decision is one that leads to impractical or inefficient outcomes. On other accounts, the pivotal considerations are contemporary notions of fairness and morality, such that decisions are most insidious when they fall dramatically out of step with modern ideals. Still other perspectives emphasize the centrality of popular sovereignty to American law and politics. If a judicial decision stands in the way of self-government, it is a prime candidate for being overruled. The list goes on and on, and the takeaway is always the same: Commitment to any interpretive methodology has crucial implications for the status of precedent. The fact that a judge dislikes a particular statute does not mean the statute is unconstitutional. Likewise, the fact that a judge is bothered by the consequences of a prior decision does not mean those consequences are relevant to whether the decision should be overruled.
If theories of precedent are derivative of broader theories of constitutional interpretation, debates over the durability of precedent collapse into debates about which interpretive approach is best. Once that happens, stare decisis loses the ability to bring together judges of different predilections and to imbue constitutional law with a sense of continuity that transcends interpretive debates. To avoid such a result, I will suggest that the better practice is to shake off the trappings of constitutional theory in pursuing a doctrine of stare decisis that operates independently of any interpretive methodology.
Before rethinking the connection between precedent and interpretive theory, we must bring that connection to the surface. In this chapter, I explore ways in which a judge's preferred methodology of constitutional interpretation can affect her conclusions about the strength of precedent. I also contend that thinking in terms of methodology is only the first step. Different judges can arrive at the same methodology through distinct normative commitments. Those commitments – the underlying choices that explain why someone has adopted a given approach to legal interpretation – play a significant role in defining the relevant costs of judicial error and determining when a precedent should be overruled.Footnote 2 My hope is to situate debates over precedential strength within the context of competing interpretive methodologies and the normative commitments that drive them.
Constitutional Interpretation and Legal Relevance
In exploring the connection between precedent and interpretive methodology, a natural starting point is constitutional originalism. That is because recent years have witnessed an outpouring of scholarship regarding originalism's compatibility with stare decisis. This phenomenon owes in part to the rising profile of originalism as an interpretive approach. It also reflects a response to originalism's critics, some of whom contend that a focus on the Constitution's original meaning is incompatible with wide swaths of the Supreme Court's case law, including heralded decisions like Brown v. Board of Education (1954).Footnote 3
As it is commonly understood, originalism encompasses the belief that the meaning of constitutional terms was “determined at the time the text was written and adopted.”Footnote 4 What exactly that meaning entails, and how it is gleaned, is subject to debate. Some originalists seek to discern the intentions of the Constitution's authors or ratifiers. Others look to the public understanding of the Constitution's text during the framing era. And even those who agree on the proper inquiry can differ about the best way to undertake it.
For the moment, let us put these differences aside and begin with a version of originalism that is especially resistant to constitutional precedent – a version introduced by Chapter 2's discussion of the legitimacy of stare decisis. Gary Lawson asserts that the judiciary's power to invalidate actions of the political branches exists only because the Constitution is “hierarchically superior to all other claimed sources of law.”Footnote 5 It follows, he contends, that the Supreme Court may not defer to judicial precedents that misinterpret the Constitution. Along with Professor Lawson, Michael Paulsen has articulated a vision of originalism that is at odds with the preservation of judicial mistakes. In Professor Paulsen's words, deferring to flawed constitutional precedents “undermines – even refutes – the premises that are supposed to justify originalism.”Footnote 6 We might think of these arguments as reflecting a structural version of originalism grounded in beliefs about how the structure of American government, as defined by the original meaning of the Constitution's text, affects the nature of judicial decision-making.
For a Supreme Court justice who follows commentators like Professors Lawson and Paulsen in emphasizing the Constitution's superiority to its judicial gloss, the role of precedent is straightforward: Flawed constitutional decisions must be overruled. It makes no difference whether an overruling would be disruptive or whether a precedent has come to enjoy widespread support in the legal community and society at large. To elevate a flawed decision over the Constitution's original meaning is to exceed the Court's lawful authority.
If adherence to mistaken constitutional precedents is illegitimate, no weighing of countervailing considerations is necessary. The flawed precedents must be abandoned and the proper constitutional balance restored. To the structural originalist, the relevant cost of an erroneous precedent is the very fact that it deviates from the Constitution's original meaning. The costliness of such mistakes is always too great to tolerate in the name of preserving the status quo. It makes no difference whether a mistaken precedent involves taxation power, or the freedom of speech, or abortion rights. Every departure from the Constitution's original meaning is in need of correction. The cost of judicial error is constant – and decisive.
Compare the structural originalist position with an interpretive approach that treats the Constitution's meaning as subject to change in light of emerging problems and contemporary norms. That latter approach is often described as living constitutionalism. Like originalism, living constitutionalism is a label that covers a variety of approaches, which differ in meaningful ways. Some of the differences relate to matters of technique, and some deal with more foundational issues, such as the optimal pace of legal evolution.
Among the leading advocates of living constitutionalism is David Strauss, who defends a common law approach to constitutional interpretation whereby “the requirements of the Constitution evolve over time.”Footnote 7 Evolution is not the same as revolution, and common law constitutionalism gives significant regard to precedent as a source of collective wisdom and common ground. Yet precedent must yield when it becomes too great an impediment to progress. Deference gives way “[i]f one is quite confident that a practice is wrong – or if one believes, even with less certainty, that it is terribly wrong.”Footnote 8
The contrast between common law constitutionalism and structural originalism is stark. Because structural originalism treats all decisions that depart from the Constitution's original meaning as irredeemable, there is no need to distinguish between erroneous precedents to determine which are the most costly. From the perspective of common law constitutionalism, by contrast, distinguishing between flawed precedents is crucial. Some erroneous precedents are indeed too harmful to tolerate, but others should endure. The cost of standing by flawed precedents varies depending on the nature of their mistakes.
Comparing structural originalism with living constitutionalism demonstrates the more general connection between interpretive philosophy and judicial precedent. For adherents of structural originalism, precedents that depart from the Constitution's original meaning must be overruled. By definition, those precedents are too costly to tolerate. That is not true of living constitutionalism. For the common law constitutionalist, whether a flawed precedent should be overruled depends on considerations such as morality and policy. There must be an inquiry into the specific consequences of a given constitutional mistake. Only then can today's judges determine how costly it is for the law to remain settled and how important it is for the law to be right.
In drawing distinctions among flawed decisions, common law constitutionalism reveals itself as more complicated than structural originalism in its relationship with precedent. This is not necessarily a weakness. If one believes precedents occasionally should be preserved despite their flaws, some complexity is to be expected. But the debate between structural originalism and common law constitutionalism need not detain us. The point I wish to highlight is that whatever the precedent under review, the perceived cost of leaving it on the books can vary greatly depending on the interpretive methodology that one adopts. Interpretive methodology determines the relevant costs of enduring a flawed decision.
From Interpretive Methodology to Normative Commitments
No one is born an originalist. Nor is anyone born a living constitutionalist. A jurist who comes to embrace a particular methodology does so based on an underlying set of normative commitments that guide her approach to the law.
Those normative commitments add another dimension to the interplay between precedent and judicial decision-making. So far I have argued that evaluating the costliness of a flawed precedent requires judges to consult an interpretive methodology to determine which consequences are legally relevant. But a complete understanding of the costs of error must go beyond interpretive methodology. We must also be sensitive to the normative commitments that lead judges to prefer one methodology to another.
Normative commitments are the paths to interpretive methodology. Still, there is no universal set of normative commitments for every methodological approach. Even within a particular school such as originalism or living constitutionalism, differences in normative underpinnings dramatically alter the perceived gravity of constitutional mistakes – and, as a result, the determination whether a dubious precedent ought to be retained.
Return to the example of originalism. I already described a version of structural originalism that emphasizes the Constitution's hierarchical superiority to, among other things, judicial precedents. But there is more than one way to be an originalist. Some proponents of originalism look to other values to justify their methodological choice. Those values, in turn, inform the treatment of precedent.
To illustrate, consider the work of John McGinnis and Michael Rappaport, who defend a theory of consequentialist originalism. They argue that interpreting the Constitution in light of its original meaning is the best approach from the perspective of maximizing human welfare. Professors McGinnis and Rappaport do not dwell on the welfare effects of specific constitutional rules. They focus instead on the process by which the Constitution became law. Their central claim is that because the Constitution and its amendments required supermajority approval, constitutional rules will tend to perform well in promoting welfare so long as the document is interpreted in light of its original meaning. Professors McGinnis and Rappaport also cite other consequentialist advantages of originalism in the form of legal clarity, judicial restraint, and the channeling of efforts at revision through the formal amendment process. Ultimately, though, the most distinctive feature of their theory is the connection between supermajority processes and desirable results.
Consequentialist originalism presumes that the Constitution's original meaning should be implemented, but the theory allows for the elevation of precedent over original meaning under certain circumstances. For example, when a flawed (in originalist terms) precedent has come to receive supermajority support, courts ought to preserve it. Following such precedents is presumed to be beneficial given their widespread support, thus overmatching any benefits of changing the law to make it more consistent with the Constitution's original meaning.Footnote 9 Likewise, if a precedent's overruling would generate extraordinary costs, the precedent may be retained, notwithstanding its deviation from the Constitution's original meaning. As these exceptions suggest, the driving objective for consequentialist originalism is not to privilege original meanings for their own sake. It is to maximize welfare through an approach that gives presumptive fidelity to original meanings but that leaves space for deferring to flawed precedents under specified conditions. The aspiration is “to use the original meaning when it produces greater net benefits than precedent and to use precedent when the reverse holds true.”Footnote 10
The need to determine which flawed precedents are most problematic marks an important difference between consequentialist originalism and its structuralist cousin. Structural originalism does not countenance the preservation of flawed precedents based on considerations such as acceptance or reliance; the judiciary cannot be spared the duty of correcting its constitutional mistakes. Consequentialist originalism takes a different approach by accepting the legitimacy and soundness of retaining certain decisions notwithstanding their deviation from the Constitution's original meaning. The very considerations that consequentialist originalists use to defend their methodology, including a focus on welfare maximization and a belief in the presumptive wisdom of supermajorities, also justify the preservation of some decisions that departed from the Constitution's original meaning.
The difference between the structuralist and consequentialist approaches flows from the theories' underlying normative commitments. For those who accept the structural originalists' claims about constitutional design and the illegitimacy of stare decisis, it makes sense to renounce the idea of preserving flawed constitutional decisions. If, by contrast, one agrees with the premises of consequentialist originalism, it is perfectly natural to acknowledge the possibility of retaining mistaken decisions that have garnered widespread support or whose overruling would be extremely disruptive. This distinction shows why it is not enough to talk about the relationship between precedent and “originalism.” The originalist school is too diverse and wide-ranging to be reduced to a single, universal perspective on precedent.
The role of normative premises can be crystallized by introducing a third version of originalism, this one motivated by considerations of popular sovereignty. As described by scholars such as Kurt Lash, the popular sovereignty account maintains that constitutional rules are uniquely capable of embodying the will of the people. Preserving that connection requires fidelity to original meanings to ensure the “entrenchment of fundamental law expressed in a written constitution.”Footnote 11 The basic reason why judges and justices should apply the Constitution's original meaning is respect for the will of the people.
A focus on popular sovereignty also implies that some departures from the Constitution's original meaning are more harmful than others. For proponents of popular sovereignty originalism, the costliness of a mistaken precedent depends on its interference with the democratic process. The most troubling episodes are those in which courts have recognized a right that the Constitution does not actually protect. Once a right is recognized, it can be removed only through the onerous process of constitutional amendment.
By comparison, a judicial decision that improperly withholds constitutional protection can be addressed through the enactment of ordinary legislation. Passing a law is not easy, but it is easier than amending the Constitution. In some situations, the possibility of a legislative fix is insufficient to neutralize the threat to popular sovereignty. For example, a decision that denies protection to political speech might undermine the very mechanism through which legislative solutions are supposed to emerge.Footnote 12 In other cases, the judiciary's withholding of constitutional protection leaves open the possibility of a legislative solution if the people are inclined to pursue one.
What this implies for the doctrine of stare decisis is that some departures from the Constitution's original meaning are more problematic than others. Decisions that improperly recognize constitutional rights are deeply harmful and should be rectified; their interference with the will of the people is too great to bear. Yet the same result does not necessarily follow for decisions whose offense is a failure to safeguard rights that the people can protect via ordinary legislation. Those cases give rise to the possibility of standing by a flawed precedent without doing too much damage to popular sovereignty.Footnote 13 Popular sovereignty originalism thus provides another illustration of how a theory's normative premises can affect the determination of which precedents are tolerable and which are too harmful to preserve.
Though I have drawn on examples from the originalist school, the role of normative premises is equally important for other interpretive methodologies. Let us return to the living constitutionalist approach, which I introduced using David Strauss's theory of common law constitutionalism. Professor Strauss argues that overrulings are justified when precedents become too problematic on metrics such as “fairness and social policy.”Footnote 14 Even so, he emphasizes the importance of maintaining continuity over time through an incremental, common law approach to judging. The goal is for constitutional law to evolve, but (usually) to do so step by step. This mentality reflects concerns about the risks of disregarding the collective wisdom of generations. It also coheres with the belief that fidelity to settled law is a valuable means of showing respect to fellow citizens: “Even among people who disagree about an issue, it is a sign of respect to seek to justify one's position by referring to premises that are shared by the others.”Footnote 15
As compared with common law constitutionalism, some other versions of living constitutionalism place less value on continuity and more emphasis on innovation and responsiveness. Justin Driver, for example, argues that a Supreme Court whose approach is too “backward-looking” cannot be expected to “bring legally subordinated groups into the constitutional fold.” Far better for the justices to “make affirmative choices to distance themselves from the framework of prior judicial decisions before setting out in a fresh jurisprudential direction, venturing into uncharted judicial territory.”Footnote 16 This theory shares with common law constitutionalism a commitment to progressivism and the morality of constitutional rules. It also shares a belief that the Constitution's original meaning is not always suitable for resolving modern disputes. Yet the two approaches have different normative emphases, which lead to different depictions of precedent. The more urgent version of living constitutionalism has a greater tendency to treat perceived injustice as a cost the legal system should not accept, even temporarily, in the name of keeping faith with the past. By contrast, the common law approach is more inclined to treat some flawed constitutional rules as tolerable while the process of incremental revision and case-by-case evolution runs its course. This is not always the case; Professor Strauss makes clear that some results are so problematic that they should be corrected without hesitation.Footnote 17 But generally speaking, common law constitutionalism is more likely to opt for gradualism and incrementalism, even if it means delaying the achievement of sound constitutional outcomes.
Another illustration of the connection between methodology and normative commitments straddles the line between originalism and living constitutionalism. Jack Balkin argues that the Constitution should be interpreted in light of its original meaning for reasons including respect for popular sovereignty. He also contends that the text “does not settle most disputed questions of constitutional interpretation.” This, in his view, is a good thing. The unsettled areas allow each generation to adapt the Constitution to its own values. A primary role of the judiciary is to safeguard the people's authority to “build out” the constitutional framework “over time.”Footnote 18 Here again we see popular sovereignty looming large, but in a new way. Under Professor Balkin's theory, popular sovereignty is continually renewed as the people fill out the constitutional framework in ways that are clearly and unapologetically driven by contemporary judgments and mores.
On the topic of precedent, Professor Balkin suggests that courts should sometimes tolerate flawed constitutional decisions. Still, decisions should not continue to hang around after they have been rendered “obsolete” by “changes in demographics, economics, technology, social customs, or other features of social life,” or when they are “deeply unjust or unworkable.”Footnote 19 The costliness of a mistaken precedent depends in significant part on its congruence with values and realities of modern society. This approach to precedent reflects and follows from Professor Balkin's broader theory of constitutional interpretation.Footnote 20 If it is vital for the Constitution to keep pace with the evolving sensibilities of rising generations, it is understandable that the most problematic precedents, and those in most urgent need of overruling, should be ones that are out of step with contemporary thinking and modern life. It is likewise understandable for constitutional mistakes that do not stand in the way of progress and self-government to be treated as tolerable, notwithstanding their flaws. The line that begins with the theory's underlying premises continues all the way to its vision of stare decisis.
By drawing distinctions within the originalist and living constitutionalist schools, I do not mean to downplay the areas of common ground. There are important similarities among theories that treat the Constitution's meaning as evolving with society's understandings and practices. Likewise, there are important similarities among theories that reject such evolution and give primacy to the Constitution's original meaning.
It is also worth noting that some judges resist comprehensive interpretive theories of any sort, choosing to tailor their methodological approach to the case at hand. For now, suffice to say that whether or not the theories I have described find full-throated acceptance in the practice of any particular court or judge, they help to illustrate an essential point about the status of flawed precedents. Determining how costly it would be to uphold a precedent depends on underlying methodological and normative conclusions. Those conclusions tell us which sorts of implications are relevant to the interpretation of the Constitution. There is no universal explanation for why it is important for the law to be right or why it is problematic for the law to be wrong. A theory of precedent must never lose sight of this fact.
