Academic journal article Northwestern University Law Review

Precedent and Constitutional Structure

Academic journal article Northwestern University Law Review

Precedent and Constitutional Structure

Article excerpt


Judicial precedent is defeasible and it is indispensable. The Supreme Court commonly explains that respect for precedent is important, and even necessary, to the rule of law. At the same time, the court cautions that no precedent is beyond reconsideration and the doctrine of stare decisis is not an "inexorable command" to endure the mistakes of the past.1 Standing by precedent is "the preferred course" for reasons sounding in consistency, predictability, efficiency, and "the actual and perceived integrity of the judicial process."2 Still, preferred is different from required.3 Sometimes there are good reasons to depart from the past. When there are, the pull of precedent can give way.

There is no inherent contradiction in this vision of precedent. Fidelity to prior decisions can be integral to the rule of law and rebuttable for compelling reasons. The mystery is not how these principles coexist but where they come from. The Constitution does not expressly discuss the role of judicial precedent or the doctrine of stare decisis. While some commentators argue that deference to precedent is encompassed in provisions like Article III's "judicial Power," not everyone agrees.4 Another possibility is that the Constitution takes no position on precedent, implicitly authorizing courts to apply common law principles of stare decisis.5 Or maybe the Constitution actually forbids deference to precedent, at least when a decision deviates from the document's meaning as properly understood.

These possibilities are intriguing, and the scholarship analyzing them is insightful and instructive. But I want to approach the connection between precedent and constitutional law from a different angle. My claim is that we can view deference to precedent as an implicit constitutional principle that coheres with key features of the framework of American government.6 This vision of precedent as a "basic self-governing principle within the Judicial Branch" has arisen from time to time in Supreme Court opinions.7 My aim is to give it sustained attention and, in doing so, to take a step forward in understanding the constitutional dimensions of stare decisis.

Defending precedent as a constitutional principle does not fully determine how sharply past decisions should constrain future courts. Neither does my argument fully determine the set of considerations that can justify overruling prior decisions. Even so, studying the constitutional foundations of precedent helps to define the rules of engagement for courts tasked with applying old decisions to new facts. It also offers lessons about what federal judges must do, may do, and cannot do in their treatment of precedent. And the same goes for Congress. To take an example to which I return below, if 791

the Constitution requires presumptive deference to precedent, Congress has no power to eliminate that presumption. But to the extent stare decisis rests on a legal foundation apart from the Constitution itself, the doctrine may be susceptible to congressional abolition. Putting these principles together, I will contend that while legislation can affect the various factors that are included in the doctrinal calculus-much like it affects the federal courts' admission of evidence8-the Constitution implies a baseline presumption of deference that even Congress cannot remove.

Recognizing the constitutional salience of precedent also responds to the objection that deferring to flawed decisions is unlawful. While the Constitution does not contain a "Stare Decisis Clause,"9 the legal validity of deference arises by implication from the Constitution's structure, text, and historical context. This approach helps to square the Supreme Court's view of "respect for precedent" as "indispensable"10 with its seemingly discordant description of stare decisis as "a policy judgment."11 Fidelity to precedent reflects a policy judgment rather than an unflinching command in the sense that it sometimes gives way: namely, when there is a special justification for overruling. …

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