College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 1991 The Role of Precedent in Constitutional Decisionmaking and Theory Michael J. Gerhardt Repository Citation Gerhardt, Michael J., "The Role of Precedent in Constitutional Decisionmaking and Theory" (1991). Faculty Publications. 980. https://scholarship.law.wm.edu/facpubs/980 Copyright c 1991 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs The Role of Precedent in Constitutional Decisionmaking and Theory Michael J. Gerhardt* Table of Contents Introduction . 70 I. Pre~e?ent as. a Stabilizing Influence in Constitutional Dectsionmaktng. 76 A. The Role of Precedent in the Certiorari Proc:!ess . 78 B. Precedent as a Source of Stability for Constitutional Law . 83 1. The Historical Functions of Precedent. 83 2. The Structural Functions of Precedent . 85 3. The Immunization of Precedents from Overruling........ 87 II. Precedent as a Source of Indeterminacy in Constitutional Decisionmaking . 90 A. Purposeful Versus Unintentionally Indeterminate Precedents . 91 B. Four Sources of Indeterminate Precedents . 92 1. The Consequences of Substantive Splits on the Court. 92 * Associate Professor, Marshall-Wythe School of Law. The College of William and Mary. B.A. 1978, Yale University; M.Sc. 1979, London School of Economics; J.D. 1982. University of Chicago. The author is grateful to Vincent Blasi, Erwin Chemerinsky, Neal Devins, Dave Douglas, Paul Marcus, Tom Rowe, Rod Smolla, Steve Thel, and Ron Wright for their invaluable and generous comments on earlier drafts; to Susan Grover. Charles Koch, Paul LeBel, Glenn Reynolds. and Ron Rosenberg for moral support; and to Laura Dalton, Vanessa Elliot, Julie Greenisen, Tim Hui, Susan Korzick, and Wendy Watson for their exemplary research assistance. November 1991 Vol. 60 No. 1 68 The Role of Precedent THE GEORGE WAsHINGTON LAW REVIEW 2. The Difficulties of Determining the Level of Generality at which to State the Rule of a Case . 94 3. The Art of Weakening Precedents.............. 98 a. The Effects of the Court's Mood and Composition. • • . 99 b. The Court's Sensitivity to Current Political Mores . • • . • . 103 c. Perennial Controversy as a Deterrent to Explicit Overrulings .. .. .. .. .. .. .. .. 104 d. Weakening Precedents Through Distinctions 106 4. The Confusion over the Criteria for Overrulings 109 TIL The Justices' Individual Approaches to Precedent ...... 114 A. The Implications of Focusing on the Justices' Individual Approaches to Precedent . 114 B. The Individual Justices' Views on Precedent ....• :. 117 IV. Constitutional Theory and the Problem of Nonconforming Precedents . 131 A. The Tension Between Unitary Theory and Precedent • . • . • . 131 B. The Challenge of Reconciling Standards for Revie~vin~ Precedents and Interpreting· the Constitution....................................... 137 I. Explaining Theories of Precedent .............. 137 2. Critiquing Constitutional Hierarchies . 139 C. Toward a Reconciliation of Theory and ·Precedent . 140 Conclusion . • . • . 145 Appendix ..................•...........••......-.:........... 147 "[f]he instant decision •.. tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance ... that the opinion announced today may not shortly be repudiated and overruled by justices who deem they have new light on the ·subject.'' Justice Owen Roberts1 "A judge looking at a constitutional decision may have compul­ sions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it." Justice William 0. Douglas2 1. Smith v. Allwright, 321 U.S. 649, 669 (1944) (Roberts,]., dissenting). 2. William 0. Douglas, Stare Decisis, 49 CoLUM. L. REv. 735; 736 (1949). 1991] 69 Introduction The dramatic end of the 1990-1991 Supreme Court Term focused national attention on a perennial question in constitutional law: to what extent do the Justices follow precedents with whose reasoning or holdings they disagree. Justice Thurgood Marshall's abrupt res­ ignation on the last day of the Term underscored his frustrations over the Court's overruling of two criminal procedure precedents on that same day in Payne v. Tennessee, 3 and over the possibility that "scores of established constitutional liberties are now ripe for re­ consideration."4 In the aftermath ofJustice Marshall's resignation, including the contentious confirmation proceedings for Justice Clar­ ence Thomas,5 many Senators and concerned Americans expressed their frustration over the prospect of the Court's dismantlement of a significant number of precedents recognizing protection for individ­ ual liberties in such varied areas of constitutional law as abortion, affirmative action, separation of church and state, and criminal procedure.6 The anxiety generated by these events is complex. It includes concerns not only about the potential loss of specific liberties but also about the Court's abandonment of the institutional values nor­ mally associated with fidelity to precedent,7 including the neutral, impartial, consistent application of the rule of law8 as well as the 3. Payne v. Tennessee, 111 S. Ct. 2597 (1991), ovenuling South Carolina v. Gath­ ers, 490 U.S. 805 (1989) and Booth v. Maryland, 482 U.S. 496 (1987). See infra notes 38- 39 & 44 and accompanying text for a discussion of Payne. 4. Payne, 111 S. Ct. at 2619 (Marshall,]., dissenting). 5. For a general commentary on justice Thomas' confirmation proceedings, see Michael]. Gerhardt, Divided justice, 60 GEo. WASH. L. REv. (forthcoming Apr. 1992) (dis· cussing what the Thomas hearings revealed aboutjustice Thomas, the confirmation pro­ cess, and the Supreme Court). 6. For a list of such precedents, see Payne, 111 S. Ct. at 2623 & n.2 (Marshall, J., dissenting); infra note 44. 7. As used in this Article, "precedent" refers to the facts, procedural posture, rea­ soning, and/or holding of the decision in which a court has resolved a particular legal dispute. CJ infra note 18 (discussing stare decisis). But see Henry P. Monaghan, Stare Decisis and Constitutional Atijudication, 88 CoLUM. L. REv. 723, 763-67 (1988) (suggesting that there is no clear definition of precedent but that whatever definition people choose should include the rule or standard set forth in a case). 8. See, e.g., ARTHUR]. GOLDBERG, EQ..UALjusncE 75 (1971) (suggesting that fidelity to precedent "fosters public confidence in the judiciary and public acceptance ofindivid­ ual decisions by giving the appearance of impersonal, consistent, and reasoned opin­ ions"); RICHARD A. WASSERSTROM, THE jUDICIAL DECISION 56-84 (1961) (identifying certainty, consistency, fairness, equality, efficiency, and predictability as justifications for adherence to precedent); Geoffrey Stone, Precedent, the Amendment Process, and Evolution in Constitutional Doctrine, 11 HARV.J.L. & PuB. PoL'Y 67, 70 (1988) (explaining that a "doc­ trine of precedent" promotes efficient judicial decisionmaking, "predictability in our af­ fairs," more attention to the "stakes" of resolving a particular legal dispute, caution in judicial decisionmaking, and chances that a justice can make lasting contributions. "If a justice disregards the judgments of those who preceded him, he invites the very same treatment from those who succeed him. A justice who wants to preserve the value of his own coin must not devalue the coin of his predecessors."). Although similar institu­ tional values or values such as stability and continuity are promoted when a court fol­ lows a precedent in common law and constitutional adjudication, those .values can be outweighed in constitutional adjudication by a justice's normative views of the Constitu­ tion. See infra notes 215-27 and accompanying text (discussing how different Justices factor such values into their decisionmaking). For commentary on the role of precedent 70 (VOL. 60:68 The Role of Precedent THE GEORGE WASHINGTON LAW REVIEW legitimation of our system of government under which the Court and the other branches should be bound (at least in some meaning­ ful way) by the rule oflaw.9 If the Justices were to adopt a low level of deference to precedent (for example, overruling a precedent merely deemed erroneously reasoned}, then they will have increased the chances that a subse­ quent Court will take the same route. Future Justices could rely on past decisions as expressing a theory of precedent that supports them in overruling precedent based solely on disagreement with the underlying reasoning of those precedents. The inevitable conse­ quence of all this would be chaos, lack of certainty regarding the durability of a number of individual freedoms, and/or proof positive that constitutional law is nothing more than politics carried on in a different forum. A pervasive problem with trying to allay these concerns, however, is that it is difficult to determine how much the Supreme Court re­ spects precedent as a source of decision. The subject often does not generate candor (or full explication) because it encompasses the at­ titudes someone may have but not be fully prepared, inclined, or even encouraged to disclose about constitutional law. to For exam­ ple, the Justices infrequently debate openly and ~lly or reach any consensus on the reasons and