Surely no one can be “against” precedent. The essence of law is like treatment of like cases. And that requires fitting the case in front of the court into the pattern of previous cases, such that current litigants have no valid grounds to claim that they are being penalized for following pre-existing rules. And yet for decades, Americans of all stripes have been repeatedly surprised by swings in Supreme Court jurisprudence and their effects in lower courts. Whether trying to run a business, prevent the government from taking their property, bring up their children in communities that respect their religious values and involvement in public life, or enforce state laws regarding everything from labor relations to protecting children from pornography, Americans face an uphill battle understanding, let alone following, court-mandated rules.
It would be easy to lay blame for this situation at the feet of Progressive judges who for over a century have been substituting their own wills and preferences for the text and intentions of the Constitution’s drafters. The briefest contrast between seminal cases makes the point. Marbury v. Madison is generally seen as the origin of American judicial review. But the Court there merely refused to hear a case because, while a statute purported to grant it jurisdiction, the Constitution was clear that it could not. Modern, Progressive judicial review is seen in cases like Everson v. Board of Education. Here the Court asserted the power to construct a “wall of separation between Church and State” on American society. Of course, the Constitution includes no such phrase or imperative. The Court imported it from Thomas Jefferson’s correspondence, and from the literature of anti-Catholic activists during the 19th Century.
Everson wasn’t an application of constitutional text in the way Marbury was. It was an assertion of judicial power. As such, it is bad law. Worse, it has spawned a plethora of succeeding opinions demanding the overhaul of American public life. On its unconstitutional basis, courts have demanded the deconstruction of any institution, practice, or mere sign of approval from any vaguely governmental body for religious (and specifically Christian) practices and beliefs. And Everson has hardly been the only such “super precedent” that has arisen from an act of judicial usurpation but is now deemed beyond fair questioning. The deeper problem for American law is the fecundity and staying power of such usurpations.
Progressives do not rule alone. For decades, Progressives have had to contend with a vigorous group of judges—often a majority of Supreme Court Justices—devoted to deciding cases on the basis of legal text and tradition. And what has been achieved? Everson still stands, as do its progeny and other highly damaging super precedents.
The results border on judicial chaos. Everson, for example, has never “worked” as a precedent. It is hostile to the text of the Constitution and the laws, customs, and practices of our unwritten constitution. Its logic points inevitably toward the banishment of religion from public life altogether. That might bring open revolt, and so the “Lemon test” was created as a means of mediating disputes over just where and how high the wall of separation should be. Lemon hasn’t worked either. Courts repeatedly have had to revisit and change rules regarding what kinds of “aid to religion” are allowed and what kinds of “endorsements” are permitted as meaningless or forbidden as damaging to the self-esteem of the irreligious. Now the Court itself has begun openly questioning the utility of Lemon’s subjective reasoning. But the Court still refuses to abandon the Rube Goldberg machinery it has constructed. The hostility to religion remains, as does the increasingly incoherent judicial oversight and determination to defend Everson’s logic.
And so it goes throughout American law. The atextual “privacy” conclusion in Griswold v. Connecticut effectively elevated an ideological commitment to individual autonomy to a place above the Constitution. It thereby spawned decisions, from Roe to Obergefell and beyond, in every corner of life and law, that dismantled laws, institutions, and practices dating back to (and beyond) the founding era. Because many of these decisions upended institutions and practices that citizens relied upon, they cut against the very grounds for precedent itself—reliance on steady law.
And yet in the name of precedent, today’s textualist Justices seem determined to maintain the structure of law built entirely outside of the Constitution. One example among many: in her concurrence in Fulton v. Philadelphia, Justice Amy Coney Barrett shied away from overruling what she acknowledged to be a misreading of constitutional text and tradition in Employment Division v. Smith because she was unsure how Smith’s unworkable regime might be replaced with a new one based in “strict scrutiny.” To be fair, that pre-existing tiers-of-scrutiny regime, also the product of bad precedent, has proven unworkable for decades, relying on the prejudices of the judges hearing each specific case and therefore failing to provide consistent results. Nevertheless, Barrett’s concurrence shows the dilemma faced by Justices who hold simultaneous commitments to textualist methods and to modern precedent.
The source of this dilemma, of a grasping after justifications for bad precedents in the name of consistency, lies in a deeply flawed understanding of precedent. For centuries, precedent had been an important tool in the judge’s search for what the law is. Since the rise of legal positivism, with its rejection of right reason and history, precedent has been turned into a false justification for judicial lawmaking, used to subordinate law to the will of the judge and to shield the resulting web of judge-made rules from scrutiny. The problem is especially pronounced where statutes or the Constitution are involved. The Supreme Court’s prudential use of precedent (stare decisis) has hardened into a doctrine that justifies increasingly complex and hard-to-follow readings, re-readings, and elaborations of seminal decisions that form an extra-constitutional fabric of quasi-law (decrees with the power but not the essential form, indicia, or pedigree of law) that stands in place of our legitimate frame of government. Judges have come to rule over a kind of constitutional common law that presumes the legitimacy of super precedents empowering them to create their own legal rules and structures.
But the Constitution is not a precedent; it is a text. And texts must be read according to their own terms. In statutes, and especially constitutions, the law clearly is embodied in the text, not any particular interpretation of it. In making a constitutional interpretation, the courts must treat previous interpretations as indicators of the law, not the law itself. Textual construction properly involves the use of long-established grammatical rules and basic principles or “maxims” such as that a person should not profit from his own misdeed. These maxims provide a set of guideposts preventing judges from straying too far from the drafters’ understanding of their own terms and intentions, as well as the deeper traditions and assumptions of a functioning people regarding the purposes and limitations of law. They have been largely replaced by notions of “absurdity” and public policy that serve as mere stand-ins for judges’ personal preferences. Still, maxims once did and could again guide and cabin that discretion even in hard cases by privileging traditional moral understandings above ideological goals and even short-term stability.
Common law systems like ours especially require that judges treat like cases alike and find the rule of the case in front of them by looking for consistent facts and chains of reasoning over time. But well into the 20th century, American courts recognized that, because their job was to find and not make law, they were to recognize previous cases as indicators of the proper rule, not the rule itself. This meant that facts and reasoning were not to be judged primarily according to how they might be made to fit a consistent narrative of previous cases; after all, some of those cases—even old ones—may well have been decided wrongly. Rather, preceding decisions were more or less persuasive examples of how maxims and like principles of law should be applied to given facts, given existing customs and statutory language. They carried weight, especially in close or “hard” cases but did not themselves command obedience as law. New cases might show that the law was somewhat different from what the preceding judge had thought. Like all human beings, judges were fallible and so an attitude of some humility in seeking the rule dictated modest, relatively narrow findings that would not mislead and might be corrected with relatively little harm to litigants and the rule of law.
The core decisions upholding our current juridical order involved the invention of rights, duties, and especially powers not in the Constitution. In defending these “precedents,” courts have been making law ever since. As bad, they have all but eliminated checks on judicial power arising from the interpretations of coordinate branches of government, from the necessary variety of customs within various jurisdictions, and from the independent actions of all these separate authorities. In this context it is clear, for example, that the much-vaunted extension of “fundamental” rights through incorporation, turning the Bill of Rights (intended as a bar on federal action) on its head, provides almost unlimited license for the federal government to interfere with state and even non-political actors.
Judicially created rights emerging from super precedents empower the central government to define and apply them as they see fit. Combined with the Court’s Commerce Clause and related precedents (as well as the refusal to follow Schecter’s rather obvious holding than only Congress can make law), incorporation has constructed a doctrine of federal power that sees limitations only where that power unreasonably trenches on a currently favored right. What we have lost, here, is the presumption of liberty, of freedom of action where the government, especially the federal government, is not specifically empowered to act. What we have lost is self-government rooted in tradition and right reason.
Stare decisis is itself a mere policy, a determination that precedents be kept until they fail to do their job of providing predictable results. Radical change is indeed dangerous. But predictable results that damage our Constitution, the legal order it shapes, and the social order on which it relies have no legitimacy. They are perversions of fundamental law.
Judges’ previous, more modest understanding of precedential authority produced far more consistency over time than the current obsessive attachment to stare decisis. Self-restraint and willingness to ignore or rule out mistaken previous decisions kept judicial doctrine close to the text and the mainstream of interpretation. This prevented the kind of wild swings in decisions and policy we have seen since the triumph of legal realism. That inhumane doctrine gave us morally wooden precedents for “separate but equal” racial classifications, followed by a stab at constitutional equality, followed by a system forbidding “disparate impacts,” and now demanding “benign” discrimination. It has failed even, and most spectacularly, in its goal of replacing moral presumptions with “facts” that were supposed to provide stability.
For the sake of consistency and the rule of law that depends on it, courts must reject the plethora of “super precedents” on which our edifice of quasi-law rests. They must reject the very notion of a super precedent as something to be defended for its own sake rather than as an interpretation of constitutional text and intention. Law is not merely what the sovereign or current elite opinion says. It is what has been laid down in text and tradition—including the tradition of reasoned thought and discourse that legal realism rejected. It can be retained, or rather regained, only by a general recurrence to the judicial search, not for abstract justice or even doctrinal consistency, but for the law itself.