Ely, Roe, and the Wages of Judicial Recklessness

Will Baude has a new post on John Hart Ely’s fascinating precedent-based defense of Planned Parenthood v. Casey. Part of what makes Ely’s defense so interesting is that he had strongly criticized Roe v. Wade, arguing that it was “not constitutional law and gives almost no sense of an obligation to try to be.” You should read the whole post, including Will’s commentary, but I want to focus on this paragraph by Ely:

I don’t have a well-developed theory of stare decisis, that is, of when courts should defer to precedent rather than reconsider it afresh; I’m actually not sure anyone does. My fear, of course, is that I don’t think Roe should be overruled because I approve of it politically if not constitutionally, and there may indeed be something there. I also think, as the letter suggests, that Roe has contributed greatly to the more general move toward equality for women, which seems to me not only good but also in line with the central themes of our Constitution. I don’t think a principled opinion along those lines could have been written at the time— “We don’t know exactly how, but somehow this holding will importantly help undergird a more general movement toward women’s equality, which movement is mandated by the Constitution” obviously doesn’t make it—but I am clear that overruling it now would wreak havoc on that constitutionally legitimate movement.

Ely is not saying that Roe engendered reliance and so we are stuck with a legally meritless ruling. Rather, Ely seems to be describing a constitutionally good outcome that could not have been achieved through constitutionally good methods. How can that be?

Here is one possibility. The justices may have a general duty to promote constitutional “themes” or values, subject to the following side-constraint: they must credibly ground their decisions in relatively determinate and identifiable legal sources, like constitutional texts. This side-constraint might be essential to preserving the Court’s overall legitimacy, even though the side-constraint’s application in any given case would prevent full realization of constitutional values. In this way, the demands of legal reasoning and judicial craft would give rise to a kind of constitutional underenforcement.

That account can explain Ely’s dueling views. In the first instance, Ely thought Roe was wrong because it flunked the side-constraint. But if the ultimate effect of Roe was to enhance overall constitutional values, such as by promoting gender equality, then Casey would look quite different. Because stare decisis supplied the determinate legal source that Roe lacked, Casey could satisfy the side-constraint.

On this view, stare decisis operates primarily as a permission or enabler, rather than as a constraint. The fact of supportive case law essentially gives the Court access to a set of reasons that would otherwise be out of bounds. For Ely, direct reflection on constitutional “themes” evoked “fear,” namely, the fear of being “politically” motivated. A similar thought might help explain some pragmatic approaches to precedent. For instance, Justice Scalia famously cast stare decisis as an exception to the rule that the Court must eschew openly pragmatic reasoning.

But does this account really allow for Ely’s continued condemnation of Roe? Perhaps Ely should have come to view Roe as an exceptional act of genius: while the justices normally have to engage in cogent legal reasoning to reach good outcomes, Ely apparently believed that the Roe Court was able to skip that step and intuit a constitutionally optimal holding. And why should we evaluate moments of judicial inspiration based on rules meant for normal cases?

Still, I don’t think that Ely had to view the Roe Court warmly because of its assertedly salutary legacy. Instead, Ely or someone like him could make use of the distinction between a harmful action and a reckless one. If Roe was reckless in the sense of being a dangerous bet with long odds, then Ely could continue to criticize the Court and warn against similar rulings in the future—even as he celebrated the gamble’s long-term pay off. The permission that precedent afforded Casey would not necessarily apply elsewhere.

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Should Court Reformers Attack the Idea of Law?

Continuing their important and timely project of promoting court reform, Professors Ryan Doerfler and Sam Moyn have written a scathing book review that nonetheless makes me think much more highly of the book being reviewed. At issue is Justice Breyer’s new “pamphlet,” as Doerfler and Moyn call it, and particularly its claim “that it would be dreadful to abandon the line between politics and law.” 

In their review, Doerfler and Moyn cast the failure of the law/politics distinction as the core reason to reform the Court. They argue that we have nothing to fear, and much to gain, from “open recognition that law is political.” It is easy to see why they would make that point. Defenses of the status quo sometimes insist that the Court is just doing law, so critics should take their political gripes elsewhere. Doerfler and Moyn want to preempt that defense by showing that the Court is really doing politics, rendering it a legitimate target for ideological critique. 

Yet the case for disempowering the Court doesn’t actually depend on rejecting the law/politics distinction and would be much more persuasive if it did not try to do so. 

For one thing, there is a difference between law and politics, haters notwithstanding. Just as a naïvely absolute law/politics division is oversimple, so too is it untenable to claim that law never has, or cannot possibly have, a practical, normative, or sociological identity different from politics. Doerfler and Moyn state that “Breyer comes exceedingly close to confessing that the Supreme Court is actually a political institution.” A more charitable reading of the book is that Breyer is channeling the sophisticated views of legality that are taught in jurisprudence courses every day. If Doerfler and Moyn embrace a similarly nuanced view, then perhaps there isn’t such a stark opposition between the reviewers and the Justice after all.

For another thing, the idea that the Court should be weaker is entirely compatible with the law/politics distinction. Perhaps the Court is just not very good at answering legal questions, at least in its current configuration. Or maybe the laws that the Court applies are themselves too capacious, or too amorphous, for democracy to flourish. If the Court is getting the law wrong, or if the law is itself undesirable, then we might have eminently good reason for judicial disempowerment—as many conservative critics of the Court have argued in recent decades. By seeming to insist on collapsing law and politics, Doerfler and Moyn prevent themselves from laying claim to these kinds of arguments and make adversaries out of allies.

Finally, frontal attacks on the law/politics distinction, besides being exaggerated and unnecessary, can indeed be very harmful. Breyer makes this point both in his book and in several interviews, and Doerfler and Moyn single it out for special rebuke. Here is one such passage from their article:

Identifying a very particular American institution with the “rule of law,” Breyer similarly remarked in a New York Times interview in late August that “tyranny, autocracy, irrationality” are the only alternatives. But Breyer’s belief that reform will bring lawlessness and oppression seems entirely melodramatic, given that no court in any other country enjoys the kind of policymaking authority our Supreme Court does—and those democracies often function better.

If Breyer is being “melodramatic,” then perhaps his critics are as well. In the interview that Doerfler and Moyn reference, Breyer was explicitly open to more careful reforms, like term limits. What Breyer is trying to say (I think) is that having a “rule of law” that is separate from politics is a precious, fragile thing. A society that completely rejects that separation, because it cannot see that judges do something different from politicians, is in trouble. Thus, we should guard against well-intentioned reforms that assume, or aspire to achieve, the collapse of law into politics. In this way, a melodramatic defense meets a comparably melodramatic critique. 

Doerfler and Moyn reply that the U.S. Supreme Court is the most powerful court in the world. Perhaps so, but it surely isn’t the only court premised on the existence of law. In essence, Breyer’s defense forces Doerfler and Moyn to shift to a different topic, one that they should have focused on all along: power. They can leave the law/politics distinction alone.

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Must SCOTUS Injunctions Abide By Precedent?

There now appears to be consensus at the Court that it may issue injunctions not only when claims are “indisputably clear,” but also when they are clearly disputable. In cases involving covid and restrictions on religious worship, the Court issued highly contestable injunctions. And, in the SB 8 litigation, dissenting justices voted to issue an injunction that, even if justified, would have been similarly contestable. 

Indeed, it is fair to say that every sitting justice has recently voted for at least one “anti-precedential injunction,” that is, an injunction that was not only contestable, but actually at odds with the most relevant available precedents: in the covid cases, these precedents included Employment Division v. Smith; in the SB 8 case, Ex parte Young. Such injunctions do not enforce precedent but change it. That jarring result has inspired criticism, with Steve Vladeck forcefully arguing (in connection with the covid cases) that “newly minted rights . . . cannot justify an emergency injunction pending appeal.” 

This controversy resembles debates over many other “clarity doctrines.” There are two basic ways forward:

1. The Court could decide that the applicable standard is fundamentally a measure of each voting justice’s confidence. The justices must be adequately certain that the claim is correct, or that the lower court erred in denying it. By analogy, consider a complex math puzzle. Even if most people—or most experts—get the puzzle wrong, an especially talented mathematician might know (or believe that she knows) the answer with complete confidence. True, focusing on internal confidence would be in tension with the “indisputably clear” standard that is often invoked in this area, given that phrase’s apparent focus on what can in fact be “disputed.” But perhaps it is time that that phrase be retired.

This approach would make room for Court injunctions that are contrary to Court precedent. If five justices are certain of the right answer, they may be equally certain that they would vote to overrule any contrary case law. To illustrate this point, consider Justice Thomas’s avowed willingness to overrule precedent that is “demonstrably erroneous.” If a justice is entirely certain that relief is proper on the merits, then any contrary precedent would be “demonstrably erroneous” and therefore (for Thomas) no precedential obstacle. On this view, the Court’s injunction would likely qualify as precedential, at least as a “signal,” even if not at the level of a precedent issued after the deliberative benefits of plenary review. 

One might reasonably worry that this approach would render the Court one of first view, leading to all manner of Court-issued injunctions as well as overly hasty and erroneous precedents. But, to some extent, those outcomes are already taking place, and the legal standard should at least reflect reality. Further, the requirement of extreme confidence on the part of the voting justice would preserve a significant limit on the availability of Court injunctions. Litigants could not obtain injunctions based on disputed facts or legal issues that the justices cannot immediately and confidently answer. 

Of course, many opportunities for Court injunctions would remain—particularly in our polarized legal culture. Today, perhaps more than in the past, Court majorities will feel instantly certain about legal propositions that lower courts have treated as dubious or simply incorrect. That polarization may help explain why the “indisputably clear” standard has either gone by the wayside or else been deemed met in hotly disputed cases. And if polarization is the problem, then we cannot expect any formal legal standard to be a pat solution.

2. Alternatively, the Court could commit to viewing the applicable standard as an inquiry into the state of the law as viewed by some imagined third-party. The claim for relief might have to be indisputably clear from the standpoint of, say, a lower court judge who is bound to apply extant case law. This approach would be prediction-based, in the sense that each justice would assess, not her own confidence, but rather her prediction of how confident someone else would be. The “indisputably clear” standard might have originated in a similar thought: when a single justice considers whether to issue an in-chambers injunction, he should think about whether his colleagues would dispute that relief.

Under this approach, anti-precedential injunctions can, and probably would, be prohibited. By way of analogy, the Court has adopted a prediction-based clarity test within the doctrine of qualified immunity. That doctrine places a premium on existing precedent and imagines how an official might understand case law. Again, a similar analysis might apply as to Court injunctions, substituting the official with a lower-court judge. A ruling that applied this kind of standard would generally set precedent only on the state of existing case law, not on how to extend those precedents or whether they are correct. A grant of relief might then be understood only as a protective measure to safeguard rights under existing doctrine. 

This approach is also susceptible to legislative implementation. Borrowing a page from habeas corpus legislation, Congress could require that any Court injunctions issue if, or only if, the lower court’s denial “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. 2254(d)(2). Whether adopted by Congress or the Court on its own initiative, that solution would tether injunctive relief to a familiar form of predictive clarity. 

The problem here is that all the justices would at least sometimes be sorely tempted to break the rule to make room for doctrinal innovation. And that instinct is justifiable. Existing case law may not account for a new, startling reality. Or the justices’ views on a legal question might be out of step with older rulings. The Court’s role is, in part, to meet those novel or unanticipated problems. Those points help explain, and may justify, the justices’ apparent consensus on the availability of anti-precedential injunctions. Here again, increasing legal polarization matters: the hypothetical possibility of an anti-precedential injunction would not fatally undermine the prediction-based approach, but a succession of those injunctions would, returning us to the first option above.

*          *          *

Of course, there are additional considerations and approaches. We could imagine a special voting rule for Court-issued injunctions. Or the Court could formally disavow the “indisputably clear” standard in favor of a rule of perfect discretion, somewhat like certiorari. And other factors for granting injunctions can qualify or even outweigh the merits-based inquiry.

But the choice between certainty and predictability would continue to matter. If we care about the certainty of voting justices, then we might set a simple-majority voting rule, whereas a concern for predictability might support a super-majority or even unanimous voting rule. Adopting a rule of discretion would only move debates about certainty and predictability off the page, without eliminating them. And the other injunction factors, too, may be affected by the appropriate way to evaluate claims on the merits.

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Stare Decisis as Crying Wolf

Stare decisis is in the news again as the Supreme Court begins to consider requests to overrule abortion-rights precedents. To a great extent, the justices have spent years preparing for this moment, as every recent debate over precedent has seemingly had abortion rights looming in the background. Dissenting justices have adopted certain rhetorical strategies, and majority justices have had to respond. 

I explore this rhetorical dynamic in a forthcoming paper (Reason and Rhetoric in Edwards v. Vannoy) and reproduce a slightly edited excerpt below:

Imagine that you are a justice who generally hopes to protect existing case law from erosion or repudiation. You might think it is a good idea to complain about each and every instance of overruling, so as to keep stare decisis salient and make the majority coalition pay an ever-increasing “price” in professional and public esteem. But you would also worry about coming across as Chicken Little, or the Boy Who Cried Wolf. It isn’t always a big deal to overrule, even when doing so is wrong. And, sometimes, overruling is positively the right thing to do. Much as the Court would lose face by overruling too freely, as though precedent were legally irrelevant, dissenters can sacrifice their credibility by acting as though every new overruling is a fresh End of Days. So, what’s a dissenter to do?

One way of squaring the rhetorical circle is to try and have it both ways at different points in time. This solution requires selective forgetting: the importance of stare decisis is trumpeted in dissent after dissent, but the doom-and-gloom rhetoric attending each dissent is instantly swept under the rug. The point of this strategy is to make each transgression of stare decisis seem unprecedented, as though stare decisis had been eroded for the first time. A less helpful understanding of events, namely, that stare decisis has proven to be quite flexible, is thus kept out of view. This approach counts on the reader’s short memory—and, ironically, on the forgettability of the dissenter’s earlier rhetorical flourishes. 

All this raises the question of how the majority coalition might respond to our imagined dissenter’s rhetorical strategizing. The majority might do just what the dissenter hopes: wince at each rhetorical lashing, try to avoid the next one, and generally think hard before overruling. But there is another salient possibility: much as the public could come to wonder whether the dissenter is overdoing it, the majority might decide that there is no satisfying the opposition. Someone who cannot see that overrulings are sometimes justified—or just not a big deal—might not be worth appeasing. Thus, the majority could become numb to the lashing, and unafraid to overrule. The strong rhetoric against overruling would have defeated itself.

That reasoning can be taken still further. A cynical majority might put itself on the lookout for precedents to overrule. Not just any precedent will do, of course. Overruling cases that are either too important or too sound would tend to feed the dissenter’s critical flame. But when precedents are contrary to the would-be dissenter’s view of the merits, or else not terribly important, a decision to overrule can put the dissenter in a bind: she would have to moderate her rhetoric or else risk coming across as crying wolf. Notably, Ramos and Edwards respectively fit each half of that strategy, with Ramos, which established a right to unanimous criminal jury verdicts, appealing to (and splintering) the Court’s left wing and Edwards, which declined to apply Ramos retroactively in habeas cases, “overruling” only a never-used exception.

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Is “Stare Decisis … for Suckers”?

If you’re reading this, you’re probably trying to think about something ordinary during our extraordinarily trying times. In that spirit, I’d like to explore the question that’s the title of this post, using the Supreme Court’s recent ruling in Allen v. Cooper as my foil.

The trope that “stare decisis is for suckers” was popularized on the Strict Scrutiny podcast. (In fact, you can purchase Strict Scrutiny swag emblazoned with that slogan right now, thereby ensuring that at least someone will profit from the doctrine of stare decisis.) But the phrase is gaining wider attention. Earlier this month, for instance, it appeared in a dissenting opinion by Judge Smith.

This week’s ruling in Allen v. Cooper offers a nice opportunity to think about whether stare decisis is really for suckers or, instead, is for everyone. In short, Allen extended precedent to hold that Congress had not validly abrogated state sovereign immunity by enacting the Copyright Remedy Clarification Act of 1990. As Professor and Strict Scrutiny co-host Leah Litman has already noted, “Justice Thomas writes separately in Allen v. Cooper to reject the idea that stare decisis demands a ‘special justification’ before overrruling precedent.” In other words, Thomas thinks that a precedent’s mere wrongness can suffice to break from the precedent—a position that seems a lot like “stare decisis is for suckers.”

The “suckers” phrase can be viewed as the latest expression of an old lament: stare decisis is mere rhetoric, not an actual constraint on the justices. So people who take it seriously—who fail to see the difference between the justices’ words and their actions—are dupes. True, Thomas’s dismissal of stare decisis’s binding force stood in contrast with Justice Kagan’s majority opinion, which professed allegiance to it. Yet Kagan herself has recently dissented (more than once) on the ground that the Court had overruled precedent without any “special justification.” So perhaps Kagan’s characteristic paean to stare decisis made it into a majority opinion only because a majority agreed with the outcome in any event. In other words, the contrast between Thomas’s and Kagan’s views on precedent may simply reflect the difference between candor and aspiration.

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The Role of Individualization in Kansas v. Glover

Earlier this month, the Supreme Court heard oral argument in Kansas v. Glover, a case about when police have reasonable suspicion to stop vehicles that are owned (but not necessarily being driven) by people with suspended licenses. I want to draw attention to an underappreciated strand of argument in this case—namely, the role of “individualized” or “particularized” evidence. In short, the justices and their commentators have focused on whether police had a reliable or testable basis for their suspicion; but a lack of individualized evidence may actually be the more serious and intractable problem.

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Ramos and the Fate of Fragmented Rulings

In Ramos v. Louisiana, the Court is considering whether to hold that the Sixth Amendment requirement of jury unanimity applies to states via the incorporation doctrine. But a lot of the Court’s discussion at oral argument focused on issues of stare decisis, particularly what to do with fragmented decisions. Is the Court bound by its prior 4-1-4 rulings; and, if so, what rule is binding? Surprisingly, this question—which I have explored before—bears directly on whether the defendants in Ramos can prevail.

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A Tale of Two Clarity Doctrines

Many controversial legal doctrines are concerned with clarity, but they are not all treated the same way. At the moment, perhaps the most interesting pairing involves qualified immunity and Chevron. Under the doctrine of qualified immunity, police and other government officers may be held personally liable for damages only if they transgressed “clearly established law.” And, under Chevron, administrative agencies have leeway when interpreting statutes, unless “the intent of Congress is clear.” One of these standards asks about law and the other about intent, but both try to get at what is legally clear—and so seem similar.

In practice, however, the Supreme Court treats these two doctrines quite differently. Qualified immunity has morphed into a seemingly insurmountable barrier to damages, with the Court routinely enforcing the “clearly established law” requirement through summary reversals, often unanimously. By contrast, Court majorities have long been prepared to find that agencies have defied clear statutory directives, and the Justices don’t typically enforce Chevron via summary relief. In fact, recent decisions have so diluted and pockmarked Chevron deference that some justices have wondered if the case has been silently overruled. Legal clarity thus seems to have shrunk almost to the vanishing point for qualified immunity, even as it remains substantial, and growing, in connection with Chevron.

Further, a number of justices have found the very idea of legal clarity to be problematic in the context of Chevron and related doctrines, but not in the context of qualified immunity. To wit, then-Judge Brett Kavanaugh wrote an important article arguing that Chevron’s clarity standard is vacuous; and, last summer, four justices cited Kavanaugh’s paper in leveling a similar charge against the clarity standard underlying Auer deference. Even Justice Elena Kagan, no Chevron nihilist, has noted that different justices apply Chevron differently. By contrast, the qualified immunity standard is generally viewed as high, but not amorphous.

How should we account for the discrepancies between qualified immunity and Chevron? I suggest part of the answer in a just-published article entitled Clarity Doctrines. While qualified immunity and Chevron have similarly worded tests for clarity, they adopt dissimilar vantage points. Qualified immunity assesses legal clarity from the perspective of a stylized officer in field. By contrast, Chevron adopts the perspective of the deciding court.

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SCOTUSBlog Post: Hyatt fulfills expectations in a surprising way

In an already familiar 5-4 lineup, the Supreme Court has overruled Nevada v. Hall, which for 40 years has stood for the proposition that states generally lack sovereign immunity in one another’s courts. The new decision vindicates a legal position long held by conservatives, but it appears to endorse a loose approach to finding structural principles in the Constitution. The ruling also adopts a less than exacting view of stare decisis—hardly surprising for Justice Clarence Thomas, who wrote the opinion of the court, but odd given that other members of the majority, particularly Chief Justice John Roberts and Justices Neil Gorsuch and Brett Kavanaugh, have expressed greater concern for precedent. Time will tell whether Hyatt has set the stage for overrulings to come.

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Two Kinds of Overruling: Teardowns and Cleanups

This term, the Court is confronting a range of stare decisis issues, including in cases that don’t exactly qualify as blockbusters. The contrast between these cases and last term’s relatively big overrulings in Janus and Wayfair got me thinking about different ways that the doctrinal stare decisis factors can play out. Here are some initial thoughts, with an invitation for comments and reactions.

Imagine that a court thinks a precedent is incorrect and is deciding whether to overrule it. In that situation, the court will naturally be drawn toward two basic dimensions of pragmatic impact: the harm of overturning the erroneous precedent and the benefit of adopting the correct legal rule. And we can further distinguish between scenarios where each of these variables is either large or small. Paradigmatically, the harm is large when a precedent has engendered reliance and small when it hasn’t; and the benefit is large if precedent is either unworkable or insensitive to changed circumstances.

The result is a simple two-by-two matrix.









Small [Overrule]



In two of the cells, it is fairly clear which way the analysis points, at least if we view cost/benefit analysis as relevant to stare decisis. When benefits are small and costs are large, it is probably a good idea to preserve the precedent. And when benefits are large and costs are small, it is probably a good idea to overrule the precedent.

But what about cases where the benefits and costs are both either large or small? I’ll call those cases teardowns and cleanups, respectively. In other words, a teardown is a case with large benefits and large costs; and a cleanup is a case with low benefits and low costs. For recent examples, we might take Janus as an illustrative teardown and the still-pending Hyatt as a cleanup. How should courts approach these sorts of cases?

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