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The Drawback of ‘Private Precedents’ of Supreme Court docket Justices

By , in Politics , at April 4, 2022

Their efforts to appear constant can conflict with respect for precedent within the typical sense. However a brand new article argues that private precedents have a task to play as authorized constructing blocks.

WASHINGTON — Supreme Court docket justices, like most individuals, wish to seem like constant. Nobody needs to be regarded as a flip-flopper, an opportunist or a hypocrite.

Which means justices attempt to not disavow earlier authorized views, even ones that appeared in dissents, in opinions they wrote as appeals court docket judges, in educational work, at their affirmation hearings and elsewhere.

This impulse, which a provocative new article calls “private precedent,” could be at odds with respect for precedent within the typical sense.

The drive and legitimacy of such private precedents has seldom been explored, and the uncommon students who’ve thought-about it have principally been vital. “To consider one’s particular person observe document on a difficulty” in selections on whether or not to overrule precise precedents “presents an instance of political habits,” Allison Orr Larsen, a regulation professor at William & Mary, wrote in a 2008 article.

The brand new article, to be revealed in The Harvard Regulation Overview, takes a distinct view, saying that “private precedent each does and may play a central function in Supreme Court docket observe.”

Its writer, Richard M. Re, a regulation professor on the College of Virginia, asserts that “a decide’s private regulation operates as regulation — certainly, because the regulation’s constructing block.”

There may be little query that justices worth what Justice Stephen G. Breyer known as, in a current ebook, “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 totally a majority opinion expressing a opposite view on the minor matter, lest the authorized public assume that the decide is being inconsistent,” Justice Breyer wrote.

If that’s true of minor issues, it’s absolutely true of great 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 practically 34 years, “his monumental physique of opinions guided his clerks besides within the uncommon situations when a brand new subject 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.”

Erin Schaff/The New York Instances

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 government’s brief 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 dissent, this one from Justice Amy Coney Barrett, additionally figured within the briefs, with the challengers citing it three 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 might help assist 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 and not using a 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 line with a tally by Michael J. Gerhardt, a regulation professor on the College of North Carolina.

“The gradual price at which seats flip over itself encourages continuity in case regulation,” Justice Barrett wrote in a 2013 law review article earlier than she joined the court docket. “Justices do change their minds, however overruling is extra possible when recent eyes see a case.”

A opposite view was expressed in a 2008 ebook by Richard A. Posner, a distinguished federal appeals court docket decide who retired in 2017. “If altering judges modifications the regulation,” he wrote, “it isn’t even clear what regulation is.”

In an interview, Professor Re mentioned that “institutional precedent considerably depends upon and is usually checked by a distinct sort of precedent, private precedent, that’s extra elementary and that has good options and unhealthy options and that we have now to handle.”

“You’ve bought 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 subtle and measured, mentioned that “he undersells the results 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.”


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