Doctrinal Rules and Frameworks

The inquiry into scope begins with considering whether a Supreme Court opinion sets a precedent for a rule of decision or rather a specific application of law to concrete facts. There appears to be general agreement among the justices about the Court's authority to articulate rules infused with binding force. The justices commonly formulate rules that are manifestly designed to guide future decisions in the lower courts and the Supreme Court itself, and those rules receive deference in due course. The rules may be relatively targeted, like a mandate to apply strict scrutiny to content-based restrictions on speech. Or they may take the shape of broader doctrinal frameworks, such as the protocol for determining whether various protections in the Bill of Rights are enforceable against the states. Either way, deference is treated as attaching to the Court's rules of decision.

The explanation for this practice is clear enough. Withholding deference from judicial rules makes it harder to develop and maintain a systematic legal framework. As Larry Alexander puts it, “Every rule, by virtue of being a rule, decides issues that are broader than the particular facts of the cases in which they are announced.”Footnote ¹ Second-best stare decisis recognizes this fact by beginning from the premise that a decision's scope of applicability includes its articulated rule (if there is such a rule) as well as its fact-specific result. The articulated rule may be fairly basic, or it may take the form of a multifactor doctrinal framework. Whether they are simple or elaborate, second-best stare decisis defines the scope of precedent broadly enough to encompass the Supreme Court's rules of decision.

Rationales

The implications of second-best stare decisis are more complicated with respect to judicial rationales, by which I mean the reasons offered to support decisions. The Supreme Court has noted that a “well-established rationale upon which the Court based the results of its earlier decisions” generally receives deference in future cases.Footnote ² At other times, however, the Court distinguishes between a precedent's rule and its “descriptive” components, with deference attaching to the former but not the latter.Footnote ³ A consistent doctrine requires choosing between these two approaches, lest variation in the definition of precedent end up diluting the force of stare decisis.

Treating rationales as authoritative is a way of respecting the statements of prior justices. It also makes case law a source of more robust guidance for litigants, courts, and other stakeholders. These features suggest the importance of interpreting decisional rationales objectively rather than subjectively. It is not the prior justices' private intentions that matter, but rather the words they used to explain themselves within the confines of a publicly released opinion. Those words are what guide stakeholders' understandings of legal rules. Moreover, paying attention to the objective expressions that make up a judicial opinion reflects a recognition that the justices can affect the law only by working through the formal channels that govern the operations of the Court as an institution.

In addition to evincing respect for prior decisions and enhancing the guidance that each opinion provides, construing decisions broadly gives greater power to justices who are establishing precedents in the first instance. That effect may be disconcerting if one interprets Article III as placing strict limits on the ability of judges to establish binding precedents, or if one thinks decisions are more likely to be sound in their logic and accurate in their inferences when they hew closely to the facts at hand. Second-best stare decisis responds by trying to find a solution with wide appeal. It suggests an accommodation that seeks buy-in from justices of diverse methodological predilections. As it relates to the status of decisional rationales, the second-best approach is founded on compromise and shared sacrifice. Rationales need not receive deference irrespective of how widely they range, but neither should they be treated as dispensable. Instead, rationales should receive deference to the extent they illuminate the content of the applicable legal rule. The justification for paying attention to a supporting rationale is not its intrinsic worth. It is the rationale's function in clarifying the articulated rule – a rule that, in light of modern Supreme Court practice, has a well-established claim to respect.

To illustrate, consider the First Amendment implications of “true threats,” which the Supreme Court has addressed in cases such as Virginia v. Black (2003). Black called upon the Court to determine when the burning of a cross is protected by the Constitution, and when it falls into the category of unprotected threats. Along the way, the Court explained that unprotected threats “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”Footnote ⁴

As lower courts attempted to apply Black, one area of uncertainty was whether a statement is an unprotected threat only if the speaker intended to put the hearer in fear, or whether it is enough that “a reasonable speaker would foresee the statement would be interpreted as a threat.”Footnote ⁵ There is, in other words, ambiguity regarding the content and implications of the rule announced in Black. To resolve this uncertainty under second-best stare decisis, a future jurist would look to Black's supporting rationale in attempting to shed light on its rule of decision. For example, Black stated that a prohibition against threats “‘protect[s] individuals from the fear of violence’ and ‘from the disruption that fear engenders.’”Footnote ⁶ That statement is an expression of the Supreme Court's reasoning, not part of its rule of decision. Even so, the second-best approach allows consideration of the statement to help identify the applicable rule. The quoted language may be understood as providing some (though certainly not dispositive) support for reading Black to mean statements can be subject to restriction and punishment even if the speaker did not intend to instill fear in the hearer, at least if it was quite obvious that such fear would result. Understood in this way, the Court's rationale helps to inform the interpretation of its rule, and the rule and rationale work together to define the precedent's scope of applicability to future disputes.

For an example that is problematic from the standpoint of second-best stare decisis, consider United States v. Stevens (2010).Footnote ⁷ In Stevens, which I discussed in Chapter 4, the Court invalidated a federal statute dealing with depictions of animal cruelty. In reaching its conclusion, the Court withheld deference from its prior statements that speech is unprotected for First Amendment purposes if it falls into a category of expression whose costs far exceed its benefits – a principle the government argued should apply to the depictions of cruelty prohibited by the statute at issue. The Court rejected the government's argument and drew a firm distinction between rules of decision and descriptions of reasoning. The trouble with this distinction is that the Court's prior invocations of cost–benefit analysis shed considerable light on what appeared to be its rule for identifying exceptions to First Amendment protection. As Chapter 4 explained, prior to Stevens there was a powerful argument that one test for whether a category of speech fell beyond the Constitution's purview involved a systematic comparison of its costs and benefits. When it refused to credit the rationale of its prior cases, the Stevens Court arguably changed the governing rule as it was best understood in light of the existing case law. This does not necessarily mean Stevens was incorrect on its own terms; Stevens may be sound from the perspective of one who has interpretive, normative, or structural concerns about infusing decisional rationales with binding force. But under second-best stare decisis, the Court's prior endorsements of cost–benefit analysis warranted presumptive respect. Those endorsements helped to explain the Court's rule of decision in its prior cases, and they were therefore entitled to deference.

Another problematic treatment of decisional rationales occurred in United States v. Alvarez (2012), also discussed in Chapter 4. The case dealt with a prohibition against false claims of military commendation. At several points in the decades before Alvarez, the Supreme Court had declared that false statements do not possess inherent First Amendment value. Rather, the idea seemed to be that such statements are protected in order to provide breathing room for truthful speech. In Alvarez, a plurality withheld deference from the Court's past teachings about the constitutional value of falsity. The plurality distinguished the prior cases as dealing with particular subcategories of false speech such as defamation and fraud, which lead to direct and tangible harms.Footnote ⁸

Alvarez effectively rejected the logic of the Court's earlier discussions of falsity. The operative rule shifted from one in which false speech is constitutionally unprotected to one in which false speech is protected unless the government has a very good reason for restricting it. The Alvarez decision did not simply distinguish the Court's prior cases. It recast their reasoning.

It may be that Alvarez actually improved the law of free speech. The same goes for Stevens. But regardless of whether those decisions were right or wrong on the merits, second-best stare decisis would have required the Court to recognize in each case that it was considering a departure from precedent. At that point, the Court would have asked whether an overruling was warranted in light of factors such as procedural workability, factual accuracy, and reliance interests.

The obligation to defer to decisional rationales leaves open the possibility of distinguishing cases that do not apply to the dispute at hand. Distinguishing is a tried and true part of American constitutional jurisprudence, and it remains entirely proper under the theory of second-best stare decisis. Newly arising facts sometimes call for the recognition of distinctions. Those distinctions must occur within a broader system of deference to rules and reasons. Construing precedents broadly leaves less room for distinguishing than would exist if precedents were understood as “small units, full of rarely duplicated particulars.”Footnote ⁹ Yet even on the account of precedential scope I have defended, distinguishing remains legitimate and appropriate so long as it leaves prior decisions intact. As Michael Dorf has put it, the later Court's charge is not to adopt a “rigidly literalist interpretation” of an opinion's “statement of reasons.” It is to acknowledge meaningful differences without “undermin[ing] the original principle” that the opinion established or applied.Footnote ¹⁰

One can imagine any number of situations in which the act of distinguishing leaves the rationales of prior decisions intact. Cases involving the Fourth Amendment allow for distinctions in light of new technologies, such as smart phones, that dramatically alter the nature of interactions between police officers and private citizens. Constitutional rules governing the criminal sentencing of adults allow for adaptation as applied to juvenile offenders. And so on. The point of second-best stare decisis is not to ignore meaningful differences, but to ensure that earlier judges' rules and rationales are preserved. If that is not possible, distinguishing is off the table, and the question becomes whether to reaffirm or overrule.

In a pair of recent articles, Richard Re has sought to carve out something like a middle ground between overruling and distinguishing. He defends the practice of narrowing disfavored precedents by interpreting them as more limited in scope than their best reading might suggest.Footnote ¹¹ Professor Re contends that narrowing can be less disruptive than overruling, and that it can avoid (or at least delay) the need for more dramatic clashes with precedent. His analysis is insightful, and he is quite right to note that narrowing need not imply deception or bad faith. Yet I nevertheless remain skeptical of the conclusion that there is a place for narrowing within the Supreme Court's constitutional jurisprudence, at least if narrowing may be grounded in nothing more than disagreement with a precedent on the merits. It is true that narrowing is likely to be less disruptive than overruling. It likewise is true that narrowing can be a milder affront to prior courts than outright repudiation. But the smallest degree of disruption, as well as the greatest respect for precedent, comes from standing by settled law without overruling or narrowing it.

If every precedent is understood as a bundle of applications, it arguably should take a greater showing to overrule all of them than to overrule only some of them. To borrow the Supreme Court's terminology, it should take a somewhat less “special” justification to trim a precedent – which is to say, to overrule it in part – than to jettison it altogether. I see nothing wrong with this type of calibration in theory. And as Professor Re suggests, when the Court has reservations about a particular precedent, it might sometimes be sensible to overrule narrowly rather than broadly by preserving as much of the existing rule as is suitable. My point is that even a partial overruling is, at base, a deviation from the Court's institutional past. As such, it requires a justification that goes beyond disagreement on the merits. And for stare decisis to promote continuity and impersonality, the justification should operate independently of doctrinal considerations whose content is bound up with interpretive and normative commitments that vary from judge to judge. The willingness to tolerate a flawed precedent contributes to a steady, overarching rule of law. Sometimes that means resisting the urge to repudiate, or even to narrow, disfavored precedents. For all its costs, this resistance is worthwhile if it allows the Court to operate as a unified institution rather than a fluctuating assemblage of individual voters.

Alternative Holdings

Sometimes a single decision contains more than one statement of rule or rationale. Take the example of a police officer who is sued for violating a person's constitutional rights. The Supreme Court might conclude that no constitutional right was violated. It might add that even if there had been a constitutional violation, the right in question was not so clearly established as to overcome the police officer's qualified immunity from liability.Footnote ¹² Either of those conclusions would be sufficient to sustain the Court's decision. The question is whether both conclusions should receive deference going forward.

A legal conclusion that is unnecessary to resolve a case might nevertheless reflect a well-considered articulation of the Court's analysis and approach. Aspirations of impersonality and respect for one's predecessors counsel against treating such conclusions as dispensable simply because they did not affect the bottom line of the decisions that contained them. Considerations of stability and predictability support the same result: The Court can lend precision and predictability to the law, and provide guidance for future judges, by continuing to elucidate a legal issue even when it might have elected to stop its analysis at some earlier point. Alternative holdings accordingly are entitled to deference under second-best stare decisis, just as they are as a matter of general federal practice.Footnote ¹³

Asides and Hypotheticals

Next come judicial observations that do “not explain why the court's judgment goes in favor of the winner.”Footnote ¹⁴ While I noted some important exceptions in Chapter 4, the Supreme Court's tendency is to treat such statements as dispensable dicta.

As was true of the status of decisional rules, the Court's general approach to judicial asides provides a baseline for second-best stare decisis. Some interpretive theories depict unnecessary asides as overstepping judicial authority or creating a heightened risk of erroneous pronouncements. Other theories accept that judicial asides can exert binding force so long as they are clear, well considered, and thoroughly explained. The justifications for the latter position are that asides can furnish guidance, promote uniformity, encourage reliance, and constrain future judges.

To facilitate the consistent definition of precedents' scope of applicability, a choice must be made between the two approaches. Tethering a precedent's zone of impact – in other words, what the precedent means – to competing philosophical predilections runs counter to the aspirations of impersonality and continuity that animate second-best stare decisis. Without a consistent definition of scope, a precedent's meaning is unknowable until it is situated within a particular interpretive methodology. Just as second-best stare decisis resists interpretive vacillation as a driver of overrulings, it resists interpretive vacillation as the determinant of what a given decision stands for.

As a conceptual matter, it is a live debate whether extraneous statements warrant deference. The issue is less controversial as a matter of Supreme Court practice. Notwithstanding occasional exceptions, the Court generally withholds deference from gratuitous or counterfactual statements. The entrenchment of that practice supports its inclusion as a principle of second-best stare decisis. In theory, second-best stare decisis could accommodate an approach that gives deference to extraneous statements just as well as it could accommodate the converse principle. The tiebreaker, so to speak, is the body of existing case law. Absent any reason for disrupting settled practice, second-best stare decisis places a thumb on the scale for the status quo, reflecting a broader pursuit of a stable and continuous legal order. Future courts may certainly choose to treat prior opinions' asides and hypothetical statements as illuminating and persuasive. In terms of constraining effect, however, those statements are beyond a precedent's scope of applicability. Ultimately, the best course is to validate the approach more in line with the Supreme Court's prevailing practice. Asides and hypotheticals do not warrant formal deference beyond their persuasive appeal.

When this treatment of asides and hypotheticals is combined with full deference to decisional rules and qualified deference to statements of rationale, we arrive at an intermediate definition of precedential scope, representing a compromise between theories that would construe precedents narrowly and theories that would construe them broadly. The resulting arrangement may not be ideal from the standpoint of any interpretive theory. But it is a workable solution that promotes the consistent treatment of precedent across cases while respecting existing practices. This spirit of continuity, common ground, and compromise coheres with the ideal of the Supreme Court as a unified institution that maintains its character and identity across generations.

Interpretive Methodologies

So far I have addressed the implications of interpretive methodology for the strength of a precedent's constraint and the scope of its applicability. I have not yet discussed whether interpretive methodologies are themselves entitled to deference. On the one hand, a consistent interpretive methodology could create benefits for a legal regime by enhancing stability and predictability. On the other hand, the ability to declare the presumptive decisional protocol for every subsequent constitutional dispute would be an enormous power for any group of Supreme Court justices to exercise.

There is also a practical objection to treating interpretive methodologies as entitled to deference in future cases. Stare decisis does not get off the ground unless it can appeal to justices across the methodological spectrum. Each justice is asked to sacrifice some of her decisional autonomy in order to serve the goals of the Court as an institution. This is a lot to ask, though I have contended that the request is justified by the benefits of continuity and impersonality. Though it is reasonable to urge a justice to subordinate her personal views within the context of particular cases, it is unreasonable (and unrealistic) to request that she adopt, for all intents and purposes, an interpretive methodology that is not her own. The notion that a justice must adhere to an overarching interpretive philosophy merely because it prevailed at the time of her appointment runs contrary to the spirit of compromise and coordination inherent in second-best stare decisis. Asking a justice to interpret all constitutional provisions using a methodology of which she disapproves – be it originalism, living constitutionalism, or otherwise – is asking too much. It requires extraordinary sacrifice without a sufficient return. No justice would make such a pledge, and no justice should.Footnote ¹⁵

A related question is whether an interpretive methodology might warrant deference in the context of a particular legal provision. For example, when the Supreme Court interpreted the Second Amendment as protecting certain individual rights to gun ownership, its opinion was largely (though not exclusively) originalist in its reasoning.Footnote ¹⁶ Does it follow that in future cases the Court must presumptively use an originalist methodology whenever it faces questions about the Second Amendment's contours and applications? I think the answer is no. Second-best stare decisis seeks to transcend interpretive disputes, not entrench the methodological choices of previous courts. To allow a current majority to declare that all future cases involving the Second Amendment (or the First Amendment, or any other constitutional provision) must presumptively be addressed using a particular methodology creates too great an imposition on justices for whom that methodology is problematic.

An individual justice, consulting her own interpretive commitments and beliefs about the virtues of avoiding disruption, might conclude that the best course is to abide by a methodology that she would otherwise reject.Footnote ¹⁷ Such an analysis is perfectly legitimate, though obviously debatable. If, by contrast, the justice decides that such adherence is not warranted, second-best stare decisis makes no attempt to convince her otherwise. Supreme Court justices are empowered to establish rules, frameworks, and rationales that revolve around the case at hand. Allowing them to entrench the selection of general interpretive methodologies would disrupt the proper balance between past and present.

What About Chevron?

Notwithstanding my focus on constitutional precedent, it is worth pausing to consider a significant aspect of statutory interpretation that straddles the line between doctrinal framework and interpretive methodology. I am speaking of the Chevron doctrine of administrative law, which is named after a 1984 case involving environmental regulation but whose ramifications extend across a range of issues and industries. The Chevron doctrine provides that administrative agencies' interpretations of certain types of statutes must be upheld so long as they are reasonable. This is true even if the reviewing court does not believe the agency's interpretation is the best one.Footnote ¹⁸

Chevron creates several puzzles for the doctrine of stare decisis. These include whether an agency's discretion to adopt any reasonable interpretation exists even after a court has construed the statute, and whether agencies may alter their own interpretations – for example, following the election of a new president. The puzzle I wish to consider involves the status of the Chevron doctrine itself. Does the Supreme Court's practice of deferring to reasonable administrative interpretations warrant presumptive deference via the doctrine of stare decisis? This question has taken on greater import in recent years as Justice Thomas (along with some prominent commentators) has reinvigorated debate about whether the Chevron rule is defensible on the merits.Footnote ¹⁹ He has also raised the possibility that the Court's “agency deference regimes” might not be “entitled to stare decisis effect.”Footnote ²⁰

As a descriptive matter, the Supreme Court continues to treat the Chevron doctrine as settled law. The Court commonly applies the doctrine to new facts and contexts, and it does so without rationalizing the doctrine from the ground up or defending it as a matter of first principles. Less attention has been paid to whether the Chevron approach warrants deference in excess of its persuasiveness.

From the perspective of second-best stare decisis, treating the Chevron doctrine as entitled to deference would push the bounds of precedential scope too far. Chevron commits substantial discretion to administrative agencies and brings about a corresponding contraction of the interpretive domain of judges. There are arguments for grounding this approach in considerations such as expertise, congressional expectation, and judicial uniformity. But notwithstanding its potential benefits, Chevron works like an interpretive methodology that applies across a large chunk of statutory cases. I have argued that it is too much to ask a Supreme Court justice to embrace originalism, or common law constitutionalism, or pragmatism, or any other –ism on grounds of stare decisis. While deference to precedent properly encompasses results, rules, and frameworks, it stops short of requiring adherence to broader interpretive philosophies. In much the same way, it would be improper to ask a justice to accept a particular method of resolving countless statutory disputes going forward. A justice might well conclude Chevron was correct when it was decided and remains correct today. Or she might conclude, based on her individual interpretive philosophy, that considerations such as the reliance that Chevron has commanded justify its retention notwithstanding any shakiness on the merits.Footnote ²¹ Second-best stare decisis objects to none of this. It merely suggests that if the justice concludes otherwise, she ought not feel compelled to continue applying Chevron based on an institutional commitment to stare decisis.

Were five or more justices to begin departing from Chevron, a remaining issue would be what to do about prior decisions that had been resolved under the Chevron regime. The Court has invoked Chevron in validating numerous administrative interpretations. Whatever the fate of Chevron in the years ahead, those decisions will continue to warrant deference unless they are overruled. The decisions are not methodological frameworks like the Chevron doctrine itself. They are concrete applications in specific contexts with tangible results, and the justifications for stare decisis extend to them in full measure.Footnote ²² Conceivably, this opens up the possibility that preexisting applications of Chevron could receive presumptive deference even as the Court resolves other statutory disputes without invoking the Chevron apparatus. That is perfectly fine. In a pluralistic world, differences in interpretive methodology are commonplace.

None of this is to say Chevron is wrong (or right). What I have tried to demonstrate are the problems with asking justices to forsake their preferred methodologies not simply within a particular domain of interpretation, but across a huge swath of future cases. Whether the justices would be well served to coalesce around the Chevron approach for reasons apart from stare decisis is another matter entirely.

Revisiting the Structural Solution

In examining second-best approaches to precedential strength, I began (in Chapter 6) with a doctrinal proposal before considering (in Chapter 7) a structural one. The structural option provides that no precedent may be jettisoned unless a supermajority of justices votes to overrule it. Given that I have now sketched a doctrinal approach to revising the definition of precedential scope, it is natural to ask whether there ought to be a corresponding structural alternative. The goal would be to leverage supermajority voting requirements in order to insulate determinations of precedential scope from methodological rifts and cycles.

With respect to precedential strength, I suggested that the structural proposal is inferior to the doctrinal proposal for reasons involving the value of impersonality. Similar reasons explain the superiority of a doctrinal approach to precedential scope. Indeed, I think a structural approach to scope would be deeply problematic. The first question would be where to put the presumption. Should precedents be construed narrowly absent a supermajority vote to the contrary, or should they be construed broadly unless a supermajority says otherwise? There is no comparable problem in the context of precedential strength, because the Supreme Court's case law makes clear that the presumption must be in favor of fidelity to precedent.

Beyond that uncertainty, a supermajority approach to scope would imply that a precedent's meaning is a contingent fact. In difficult cases, the question of what a precedent stands for could not be confidently answered until a supermajority had spoken. This conception of precedent stands in tension with the notion of stare decisis as promoting the continuity of law. Declaring that a precedent may be overruled in light of countervailing considerations exacts some toll on stability and impersonality. But the toll is far greater if there is contingency at the very heart of what a precedent means. Notwithstanding its potential benefits in the context of precedential strength, the supermajority approach is ill suited to defining a precedent's scope of applicability.

Precedential Scope beyond the Supreme Court

I noted at the outset that my primary concern would be the operation of precedent at the US Supreme Court. At the same time, I suggested that much of my analysis would have some relevance to the role of precedent in the lower federal courts and the state courts. In concluding my discussion of precedential scope, I wish to make a few points about those latter contexts.

Begin with the lower federal courts. Decisions of a federal court of appeals are binding on district courts within the relevant circuit. They also exert horizontal force on future appellate panels, which are required to follow circuit law. Generally, only an en banc court of appeals may overrule a panel decision, though some circuits have developed procedural alternatives to streamline the process.Footnote ²³

These horizontal and vertical implications of circuit precedents are similar to the implications of precedents issued by the Supreme Court. The similarity may suggest that questions of precedential scope should be resolved identically in the two domains. But to assume such equivalence would be premature. There are possible distinctions between circuit court precedents and Supreme Court precedents. For one thing, it is at least conceivable that intermediate appellate courts may tend to make more interpretive errors than the Supreme Court. This is not due to any lesser competence, but rather to the fact that the Supreme Court ordinarily gets to benefit from a circuit court's reasoning in reaching its own decision, while the converse is not true. A reduced risk of error might also result from the Supreme Court's relatively light docket and the substantial attention its cases receive from countless stakeholders who provide diverse perspectives in the form of amicus curiae briefs. Because increased risks of error can dilute the net benefits of precedential constraint, there is a potential argument that circuit court decisions should be construed more narrowly than Supreme Court decisions in both vertical and horizontal operation.

The same conclusion might follow from the Supreme Court's unique position atop the judicial hierarchy. If one adopts a view of the Supreme Court as the federal judiciary's manager, perhaps the Court should possess broad powers to issue binding guidance, even in the form of generalized and wide-ranging statements. That argument does not carry the same resonance with respect to federal circuit courts, which have smaller areas of oversight and more cases through which they can explicate the law.

Despite these differences, the benefits of uniformity, consistency, and stability that can arise from deference to Supreme Court precedent remain salient in the context of circuit precedent. And a system that adopts distinct approaches for defining Supreme Court and circuit precedents might prove troublesome to administer, bolstering the argument for a unified model of precedential scope.

There are related questions about whether Supreme Court precedents should play the same role in the lower courts as they do in the Supreme Court itself. For example, we could imagine a scenario in which the Supreme Court construes its precedents according to the principles of second-best stare decisis, while the lower courts interpret Supreme Court precedents more broadly. The rationale would be that the virtues of uniformity and the need for guidance justify a capacious view of vertical precedent, while the dangers of entrenching mistakes warrant a more restrictive approach when the Supreme Court is reconsidering its own pronouncements. Whether such a dichotomy would make sense depends on a host of factors, including structural understandings about the role of the lower federal courts and their relationship with the Supreme Court.

For now, I leave off with this general map of the conceptual terrain. In constructing a system of precedent, the initial step should be to examine the implications of constraint at each level of the judicial hierarchy. Only upon completing that project can we determine whether the benefits of a uniform approach outweigh the costs of disregarding court-specific considerations.

The similarities between the Supreme Court and the circuit courts do not necessarily extend to the relationship between the federal and state judiciaries. It is well established that state courts are constrained by Supreme Court decisions on federal and constitutional matters. According to the justices, that constraint serves to “preserve the integrity of federal law.”Footnote ²⁴ But there are obvious differences between state courts and federal courts that may affect the operation of precedent. The first is their constitutional status. As Evan Caminker has explained, “though the Supremacy Clause declares that ‘the Judges in every State shall be bound’ by federal law, neither that Clause nor any other demands that state courts defer to a particular actor's interpretation of federal law.”Footnote ²⁵ And even if one thinks state courts have a duty to follow Supreme Court decisions, a question remains as to how those decisions should be defined.

The simplest response – that the scope of precedent should be the same in the state courts as it is in the lower federal courts – carries the advantages of clarity and efficiency.Footnote ²⁶ Still, it is debatable whether the calculus should be identical once considerations of federalism enter the picture. In declining to review decisions that include an adequate and independent ground in state law, the Supreme Court has emphasized the importance of “[r]espect for the independence of state courts.”Footnote ²⁷ The sovereignty of the states might justify a greater sphere of discretion for state court judges in their treatment of Supreme Court precedent. That is, even if one views the principles of second-best stare decisis as suitable for the Supreme Court (and perhaps the lower federal courts), one might nevertheless support a narrower scope of Supreme Court precedent within the state courts for reasons of federalism.

My present goal is not to pass judgment upon arguments such as these, but simply to illustrate how federal-state relations may inform the operation of Supreme Court precedents in the state courts. The more general takeaway is familiar by now: The analysis of precedential scope must always be attuned to institutional context.