1.
At the Supreme Court, precedent is the topic of the day. The reason isn’t obscure. With the retirement of Justice Anthony Kennedy two years ago, the prospect of the Court overturning the 1973 Roe v. Wade decision is imminent in a way it has not been since 1992, when Kennedy jointly wrote an opinion with Justices Sandra Day O’Connor and David Souter that preserved the core of Roe while subtly transforming it. That opinion, in Planned Parenthood v. Casey, depended explicitly on stare decisis, the common-law doctrine of precedent that exercises such pull in the realm of US constitutional law. The aspirationally aphoristic first sentence of the opinion read, “Liberty finds no refuge in a jurisprudence of doubt.”
Today, doubt about the Roe precedent is on the prowl, and reproductive liberty finds itself very much in search of a refuge. In an April decision in a case having nothing to do with abortion (at least on the surface), Justice Brett Kavanaugh, Kennedy’s replacement, published an eighteen-page solo concurrence laying out his vision for when the Supreme Court should overturn precedent.1 This remarkable document included a comprehensive list of what Kavanaugh called “some of the court’s most notable and consequential decisions”—all of which “entailed overruling precedent.” The list included such highlights as Brown v. Board of Education, which rejected racial segregation in public schools by declaring “separate but equal” facilities unconstitutional; Brandenburg v. Ohio, which extended free-speech norms well beyond the old “clear and present danger” rule; Lawrence v. Texas, which overturned previously constitutional laws against gay sex; and Obergefell v. Hodges, which enshrined same-sex marriage as a fundamental right. It is hard to read Kavanaugh’s opinion as anything other than a trial balloon for an opinion overturning Roe.
Kavanaugh’s willingness to flip the switch will be tested when the Court decides this term whether to overturn a Louisiana law that requires abortion providers to have admitting privileges at surgical centers in proximity to their clinics. In 2016 the Court rejected an identical Texas law, with Kennedy providing the decisive fifth vote. The precedent is fresh and therefore vulnerable to the objection that it hasn’t yet set expectations. At the same time, overturning it would be an open admission that precedent cannot easily survive a change in the Court’s composition.
For liberals, the doctrine of precedent poses something of a conundrum in the current moment, when the threat to women’s reproductive rights is more immediate and pressing than it has been in at least a generation, and Donald Trump’s Supreme Court appointees seem poised to overturn established law. On the one hand, precedent presents itself as the best argument available for liberals to make the case to judicial conservatives that they should not roll back well-established basic rights enshrined in existing constitutional law. The core argument—embraced by Kennedy, O’Connor, and Souter the last time Roe was threatened—is that, even if conservatives disagree with the original decision, they should nevertheless decline to overturn precedent. And the notion of precedent resonates, or ought to, with a traditional conception of Burkean conservatism, in which rapid or radical change is to be avoided to protect settled societal expectations and preserve social peace.
On the other hand, as Kavanaugh’s examples were intended to emphasize, liberals have cared little for the value of precedent when it comes to the high-profile moral issues that have mattered most to them since World War II. From desegregation to free expression to gay rights, liberals have sought, welcomed, and embraced activist judicial decisions in the constitutional sphere that flipped established precedent on its head. Most of the time, liberals have justified these deviations from precedent on the ground that the original decision was immoral when it was made. This kind of argument is easily adopted by contemporary judicial conservatives, who consider Roe v. Wade wrong not only as a matter of constitutional philosophy but as a matter of morals. What’s more, today’s judicial conservatives increasingly are not Burkeans at all, but exponents of a strand of constitutional originalism that favors overthrowing precedent in favor of the long-neglected “true” meaning of the Constitution.
Abortion rights are only the most salient example of an area in which a conservative majority of the Court could roll back fundamental rights. Liberals therefore need to take a fresh look at precedent to figure out what they really think about it before making it the basis of their arguments against conservative activism. In practice, it is certainly worthwhile for liberals to argue from precedent if they believe that it will affect outcomes. But that argument is only likely to carry weight if it is made plausibly and consistently—and if it does not look like opportunism when considered in the light of the many famous liberal decisions that treat precedent with scant respect.
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2.
Traditionally, legal discussion of the doctrine of precedent has come in two varieties: explanations for why stare decisis exists, and justifications for when it’s appropriate to break it. In principle, these two topics ought to be interwoven: a comprehensive theory of a custom should logically include an account of when that custom doesn’t apply. In practice, however, the judicial Sitz-im-Leben (setting in life) of most discussions of precedent has led to the bifurcation of these topics. Judges speak in praise of stare decisis when they want to uphold precedent. They speak about the limits of precedent when they want to make new law.
The words stare decisis literally mean “to let stand the decision.” It’s uncertain exactly when this law-Latin phrase came to represent the idea of precedent; it may have been as late as the turn of the eighteenth century. Regardless, the notion of legal precedent at work in contemporary US constitutional law isn’t Roman in origin. Rather, it derives from the English common-law tradition, which the British colonies in North America inherited and then consciously readopted at independence.
In its early modern form, the English common-law system differed markedly from a statute-based system: the authority of the law was not said to derive from the power of the legislature but from its already being the law of the people from time immemorial. In the classic common-law system, judges operated under the convention that they were finding law that belonged in common to all, not making it.
In that setting, the doctrine of precedent was more or less fundamental to the whole law-finding undertaking. It committed judges (in theory) to doing what they had always done. And what made the law into law was precisely the principle that the law today corresponded to what had always been the law in the past. For judges to follow their prior judgments thus marked the same continuity that was being mythically asserted about law itself.
Over time, common-law judges became more comfortable with the idea that they were charged with the responsibility and authority of updating and developing the law to adapt it to new social and economic circumstances. They no longer needed precedent to insist that the law was unchanging. But instead of dropping the whole idea, the modern common law discovered that it needed precedent for a different, almost equally significant purpose.
For law to function as a set of action-guiding rules for real people, it must be fixed and known in advance. Statutes achieve this objective by being stated in the form of rules: follow the rules, and you’re following the law. Common-law judicial decisions, composed as they are of discrete judgments in concrete cases, are harder to conceptualize and follow as rules.
Precedent can be used to solve this problem: follow the principles captured in the common-law judgments, and you’re following the rules. If the principles changed from situation to situation, they wouldn’t be able to function as rules to guide future action. Precedent came to undergird the idea that the judicial principles would be stable and therefore predictable, not constantly changing.
In this new form, the doctrine of precedent once again emerged as central to the justification of the common law. New law might be made, but that law would be consistent and rule-like, not capricious and subject to constant change. Stare decisis thus became the emblem of the modern common law. Statute-based systems, like the European civil-law tradition that consciously harked back to Rome, did not adopt the doctrine of precedent because a system of statutory rules did not need it to create regularity.
The most surprising—and problematic—twist in the history of precedent came when it migrated into US constitutional law. On the surface, there was no good reason for constitutional law to deal in precedent. The US Constitution was designed as a single super-statute, a “paramount” law, as Chief Justice John Marshall put it in Marbury v. Madison (1803). Such a rule-based document could logically have been interpreted and applied without the aid of stare decisis. Nor was there a clear English precedent for using the doctrine in constitutional decision-making. To the contrary, the received English version of stare decisis belonged to the realm of ordinary, judge-made legal rules, not constitutional decisions, which in Britain did not lie primarily with judges but with Parliament and the Crown.
Yet over the decades, Supreme Court justices, affected by the gravitational pull of precedent-based reasoning, began to engage in a practice that is today often called common-law constitutionalism.2 To simplify a bit drastically, in this mode of constitutional reasoning, the justices draw out the meaning of the Constitution not only from its text or history or structure but from principles they identify as immanent in its values and traditions—principles like liberty, autonomy, equality, and dignity. They then apply these principles to real-world topics, like segregation or reproductive rights, that are not explicitly addressed in the document. In the process, the justices act like (modern) common-law judges. They adapt constitutional law for evolving circumstances.
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Common-law constitutional interpretation by the Supreme Court brings the doctrine of stare decisis with it. It demands that the evolving law of the Constitution be an effective, forward-looking guide for action. Among today’s justices, only Clarence Thomas openly takes the view that precedent should have almost no weight in the Court’s constitutional jurisprudence. For him, the original public meaning of the document binds the justices (and the rest of the government). If the justices have deviated from that meaning, their decisions should be overruled without further ado. The other justices, however, all acknowledge to one degree or another that constitutional law should manifest predictability and stability, and that stare decisis promotes these goals.
3.
The deep tensions that today are roiling the Supreme Court’s doctrine of constitutional stare decisis are the direct result of the importation of that doctrine from judge-made common law into the realm of a written Constitution interpreted in the light of its imputed values. Put simply, the justices, conservative and liberal, all believe that precedent should be followed—except when it shouldn’t be. Whatever theory of constitutional interpretation each justice embraces (and there are several competing ones in play), they all struggle to determine when and how precedent should override the basis for decision-making that each considers appropriate.
Start with the conservatives, who for at least two judicial generations have (mostly) been the leading exponents of hewing to stare decisis. The jurisprudential defense of precedent since the Warren Court has been deeply influenced by the gradualist conservatism of Burke. Reflecting on the excesses of the French Revolution, Burke famously argued that rapid, radical change in social and legal institutions entailed an abandonment of inherited collective wisdom—and led to a chaotic radicalism that eventually had the capacity to consume itself.
Justices who take Burkeanism to heart typically think that changes in constitutional law should occur rarely, and that, if they must occur at all, they should be made slowly and predictably. This gradualism is sometimes said to be desirable in itself, to benefit from rather than dismiss the value of older social institutions. But at a more basic level, Burkean gradualism is instrumental.
Moving reluctantly and slowly in overturning precedent is supposed to enable people to rely on existing legal arrangements when they plan for the future in the shadow of knowable legal rules. If changes are coming, it should be possible to glimpse them from afar, and plan accordingly. Lawyers typically call these considerations “reliance interests.”
The term is borrowed from the general, nonconstitutional discourse on the benefits of the rule of law for efficient deployment of property and contracts. Its fit with fundamental constitutional rights is imperfect, to say the least. On the one hand, reliance interests would provide a good reason not to overturn Obergefell, because married same-sex couples have relied on the precedent to arrange their lives. On the other hand, reliance arguably would not provide a strong reason to respect Roe, because if the decision were overturned, people could (in theory) choose to have sex or not with the understanding that abortion might not be universally available any longer.
A further Burkean, instrumental purpose of gradualism in precedent is to stave off public backlash that could, among other things, delegitimize the authority of the Court to engage in constitutional interpretation in the first place. The two most salient modern instances of such backlash are conventionally said to be the “massive white Southern resistance” to desegregation that followed the Brown decision, and the anti-abortion resistance that spawned a new alliance between conservative Catholics and emboldened evangelicals after Roe.
It is worth noting that until recently, Burkean conservatives sometimes reached apparently “liberal” outcomes under the thrall of such instrumental concerns. When the Burkean Souter signed the Casey opinion, he held the view that whatever the logical infirmity of Justice Harry Blackmun’s notoriously ill-reasoned Roe v. Wade opinion, it would represent an undesirable social upheaval for the Court to take away the abortion right it had conferred nearly twenty years before. Similarly, O’Connor, a radical pragmatist, embraced stare decisis in Casey (and ten years later in an important higher-education affirmative action case, Grutter v. Bollinger) out of fear of the social unrest that could follow radical change. Kennedy, for his part, believed strongly in the Burkean idea that new constitutional values should be uncovered and introduced gradually.
The Court’s current judicial conservatives, however, are not tempted to such liberal results on precedential grounds—because, with the notable exception of John Roberts, they are decidedly not Burkeans. Even Antonin Scalia, no shrinking violet when it came to what he called Kulturkampf, was nevertheless reared in a conservativism that revered received institutions. His great dissents came in cases in which liberals were making new law, and he denounced them for the sin of abandoning judicial restraint and (in his view) legislating liberal philosophy into the law of the land. He would gladly have seen Roe reversed; but in doing so he would have had to argue that it shouldn’t have counted as a precedent at all, not that precedent did not deserve inherent respect.
After Scalia, and after the Clinton and Obama presidencies, conservatism has been transformed. Today’s conservative justices were educated in Federalist Society circles to be warriors in a generational struggle to reverse liberal precedents. They owe their appointments to the support of the same Federalist Society, to which Trump has outsourced many or most of his appellate judicial picks. With a durable five-vote majority on the horizon, these justices embody the posture of triumphant reaction. They come to bury precedent, not to praise it.
Take the example of Trump appointee Neil Gorsuch, who filled Scalia’s seat and hopes to replace him as the intellectual leader of the conservative wing. Gorsuch is closer to the Thomas antiprecedent camp than to the more ambivalent Scalian one. He is a self-declared originalist who has called for the rollback of the administrative state, which he sees as a deviation from the framers’ tripartite system of government. (In contrast, Scalia, who began as a teacher of administrative law, fully accepted the administrative agencies and did much to solidify the expansion of their power.) The fact that the administrative state is rapidly approaching its centennial and forms the backbone of all contemporary federal regulation would matter a lot to a Burkean. Yet Gorsuch seems unmoved by the idea that many years of settled economic expectations have been formed on the basis of the existing regulatory environment.
Kavanaugh’s recent dissertation on overturning precedent is in much the same vein. He summarized the problem in three questions, all of which could easily be adapted to overturn Roe: Is the precedent not just wrong but egregiously wrong? Has it caused significant negative consequences for the world or the law? And would overruling the precedent upset settled reliance interests?
Roberts, who alone on the Court professes the faith of an old-fashioned judicial-restraint conservative, is still open to the precedent argument. And for the moment, his remains the vote that matters. But one of Roberts’s signatures has been his display of bravura doctrinal skill in purporting to uphold precedents, especially opinions by his old boss, William Rehnquist, while distinguishing those precedents to reach opposite results. Roberts wields a deft doctrinal scalpel, possibly the deftest the Court has seen since Joseph Story (who served from 1812–1845). The surgeries, nonetheless, nearly always end in the evisceration of the precedent that is being “respected.” As Scalia put it in another context, “the operation was a success, but the patient died.”
The upshot is that the Court’s current liberals will have a hard time convincing its current conservatives to stay their hands and decline to overturn hoary liberal precedents like Roe because these conservatives don’t much respect the instrumental, Burkean theories that underwrote stare decisis for so long. The precedent argument, meanwhile, is only likely to move Roberts to break from his conservative allies so long as the liberals who are advancing it seem actually to mean it, not to be making it conveniently to get him on their side.
4.
The trouble for the Court’s liberals, should they urge the stare decisis argument, is that they aren’t especially Burkean, any more than are contemporary conservatives. For liberals and progressives today, the problem with precedent is that the whole concept sits poorly with the demands of justice and morality. If a decision was morally wrong when the Court first made it, most liberals now think, then it should be overturned posthaste. Indeed, it should be overturned in language that itself repudiates the very idea of precedent by declaring that the initial decision was wrong from the start, and therefore does not merit precedential respect.
This attitude reflects the current liberal and progressive political climate, which is understandably outraged by long-time moral wrongs and wants them corrected now, not some time in the indeterminate future. A morally driven constitutional perspective makes it very difficult, not to say impossible, to express respect for precedent that perpetuates an ongoing injustice.
The liberal justices may talk the talk of precedent, but they mostly adhere to this point of view. Ruth Bader Ginsburg made her legal reputation demanding immediate changes to constitutional law to redress the wrongs of sexism. Every one of her famous arguments as a Supreme Court litigator advocated reversing precedent and making new law through up-to-date interpretation of the Fourteenth Amendment. Sonia Sotomayor, who has carved out for herself the Thurgood Marshall position as the court’s most forthright progressive voice, is herself a pioneer of integration, and is not dispositionally inclined to take “later” for an answer.
Elena Kagan is more circumspect, and has ties to the older pragmatist liberal tradition to which Stephen Breyer squarely belongs. If any justice is trying to remind Roberts of his judicial-restraint jurisprudence and his instinctive respect for precedent, it is she. Yet despite her unquestioned genius as a practitioner of small-group politics, she is also more attuned to broader political subtleties than most other justices, past and present. Kagan would be loath to alienate young progressives from a justice-demanding vision. And she was a law clerk to the visionary Marshall, no respecter of immoral precedent.
A genuine Burkean, in contrast, is not urgently troubled by ongoing moral wrong, provided he or she has a plan for gradually fixing it. Kennedy took a deliberative two decades from first broaching constitutional rights for gay people in the landmark Romer v. Evans case (1996), to finding a right to gay sex in the 2003 Lawrence decision, to declaring a right to gay marriage in the Obergefell decision in 2015. Kennedy’s long delays may have helped avoid backlash, but from today’s liberal angle, they look, well, far too long.
As if to mitigate the delay, Kennedy along the way pioneered the rhetorical trope of denouncing old precedent as immoral. His Lawrence opinion said that Bowers v. Hardwick (which upheld a Georgia anti-sodomy law) “was not correct when it was decided, and it is not correct today.” The trope is infectious. In the course of upholding Trump’s anti-Muslim travel ban in Trump v. Hawaii (2018), Roberts wrote that Korematsu v. United States, the infamous Japanese-American internment decision, “was gravely wrong the day it was decided.”
Yet satisfying as it is for the Court to denounce unpopular prior precedent as immoral, the effect is to solidify the idea that stare decisis should carry no weight when five justices decide a precedent was morally mistaken. That is not the teaching of the traditional principle of precedent. This moral denunciation robs liberals of the precedent argument when five conservatives think liberal precedent is morally wrong. Roe v. Wade is a case in point, or rather the case in point. If and when the conservatives have five votes to overturn Roe, they are sure to say that the precedent was morally wrong—and therefore wrong the day it was decided.
Where does that leave today’s liberals? Hopes to sway Roberts aside, the best posture for liberals now is judicial honesty. The case for preserving reproductive rights should not be precedent, the argument that carried the three swing justices and won the day in Casey. Rather, liberals should be making a full-throated argument that the Constitution, rightly interpreted, guarantees the liberty to control one’s own sexual and reproductive decisions. It might not convince the conservatives, but neither will an inconstant commitment to precedent. And at least the truth would reflect liberals’ actual constitutional faiths.
