Academic journal article Constitutional Commentary

Subprecedents

Academic journal article Constitutional Commentary

Subprecedents

Article excerpt

SETTLED VERSUS RIGHT: A THEORY OF PRECEDENT. By Randy J. Kozel. (1) Cambridge University Press. 2017. PP. x + 180. $99.99 (hardcover), $34.99 (paper).

Not all precedent is equal. Some precedents are given more weight, are harder to overturn, than are others. Super-precedents, (3) even super-duper-precedents, (4) have special status. (5) Legal academics consider them canonized; (6) judges cite them with reverence; (7) and judicial nominees, mum on whether they agree or disagree with the outcomes in lesser cases, announce their commitment to our super-precedents. (8) If, compared to regular old precedents, some precedents count for more, might other precedents count for less? This essay makes the case for subprecedents: precedents that have only weak value, such that compared to other precedents, they are more easily ignored and easier to overturn. In his book, Settled Versus Right: A Theory of Precedent, Randy Kozel depicts a world in which judges (and particularly Supreme Court Justices) jockey to render their own rulings impervious to change and seek to elevate their own supporting rationales, hypotheticals, commentary, and even stray statements to the level of binding law, and in which the winners in high-stakes disputes over interpretive methodology and normative considerations get to shape and solidify legal rules for the nation. This essay, prepared for a symposium on KozeFs book, tells a different story: of efforts to minimize the significance of judicial decisions, to limit their reach and power, and to curtail the work they may do in future cases. Kozel's account is one of aggressive judicial ambition; mine, of deliberate timidity. Yet a full understanding of precedent requires attention to cases that start out or end up having limited precedential value. Subprecedents, this essay shows, serve some important, and at times surprising, functions in a system of stare decisis. Consideration of subprecedents thus sheds light on the questions that motivate Kozel's own study and on his noteworthy efforts to ground stare decisis in a "commitment to the abiding continuity of constitutional law" (p. 135) by shifting the operations of precedent away from the predilections of individual judges.

The essay proceeds in seven parts. Each part identifies, in field-guide fashion, a specific kind of subprecedent (illustrated with a case or two), describes its characteristics, and discusses its roles and significance. The focus throughout is primarily (but not exclusively) on constitutional cases, though it bears mentioning that a similar category of subprecedents could be developed for statutory decisions; likewise, while the focus here is on rulings by the Supreme Court of the United States, the approach could be extended to the lower federal courts and to the state courts, all of which decide far more cases than does the U.S. Supreme Court. A short conclusion draws some general lessons and discusses their implications.

I. GOLDEN TICKETS

Every now and then, in the style of a papal dispensation or a royal pardon to a prisoner whose neck is noosed, the U.S. Supreme Court sets aside the normal rules to help a criminal defendant screwed by the system. Typically, in such cases, the defendant has suffered, through no fault of his own, some terrible legal fate. His plight cries out for a remedy but the law is against him. The Supreme Court is sympathetic but it is also disinclined to announce a new legal rule that will have broad effect. The Court's solution is to issue the defendant what is in essence a golden ticket: a decision tailored to the precise circumstances of the case, designed to benefit the defendant but nobody else. Indeed, in such cases, the Court may specifically warn against anybody else applying the ruling in other circumstances to benefit different defendants (for only popes and kings get to exercise this sort of power). The resulting Supreme Court ruling, in favor of the single defendant, represents a subprecedent. …

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