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.

 

Benefits

Large

Small

Costs

Large

Teardowns

[Preserve]

Small [Overrule]

Cleanups

 

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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Nevada v. Hall and Intergenerational Legal Change

Nevada v. Hall is a decades-old sovereign immunity precedent that the Supreme Court nearly overruled several years ago, before Justice Scalia passed away. Now that the Court is back to full size, the question of whether to overrule Hall is again before the Court, and it seems likely that—once again—a conservative majority is inclined to answer yes. From one standpoint, that outcome is unsurprising: Hall has been a target of conservative critics for many years. Yet there seems to be a generational shift afoot: younger conservatives seem much more likely to think that Hall came out the right way. That apparent generational divide could shed light on Hall’s fate, as well as on broader trends in precedential change.

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SCOTUSblog Tribute to Justice Kennedy

Today, SCOTUSblog posted my tribute to Justice Kennedy, entitled “Seeing Justice Kennedy Think.”

Here is how it starts:

When I began law teaching, I asked Justice Anthony Kennedy for advice. I had clerked for him a few years before and knew that he had taught hundreds of law students in America, Europe and elsewhere. His advice: “Let them see you think.” For Kennedy, engaging with hard issues – deliberately, honestly, and independently – is a critical skill to teach by example. He applied a similar approach to judging.

Supreme Court practice will not be the same without Kennedy, and something will be lost as a result. Because of his pivotal position on the court, lawyers and commentators have spent years, even decades, trying to get inside Kennedy’s mind. That habit led to a lot of false predictions and fawning citations to his opinions — but it had a silver lining. It forced the profession to think sympathetically about principled positions that cut across the familiar views expressed in party platforms and ACS or Fed Soc conventions.

And here is how it ends:

[…] Kennedy represents a distinctive judicial philosophy marked by two words: freedom and dignity. Those values are united for Kennedy in that each requires and demands the other. To lead a dignified life is to speak, worship, work and love freely. Other values, including equality, responsibility, and, yes, civility are all important but derivative. Kennedy wants choice first, even if it means choices that go wrong.

By letting us see him think through these complex issues, Kennedy helped reveal the tensions and judgment calls that make the hard cases of constitutional law so hard. And because he not only surfaced those difficulties but also offered his own approach to them, Kennedy’s views will abide in the law for years to come. The next justice would do well to take Kennedy’s work seriously. And he or she almost certainly will.

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The Marks Rule’s Fate After Hughes 

Hughes v. United States is out, and it’s a disappointment for those of us following the law of fragmented decisions. Though the Hughes oral argument featured by far the Court’s most thorough discussion of the Marks rule, the justices ultimately chose not to address the precedential significance of 4-1-4 decisions like Freeman v. United States. Instead, the Court revisited the merits and set a new majority rule, much as the Court has done in some past decisions that posed Marks questions. Interestingly, however, the Court’s ruling still managed to undermine one of the main defenses of the Marks rule.

Regular readers know that I oppose the Marks rule, as explained in a forthcoming article and an amicus brief in Hughes. And there were several reasons to think that, if the Court was ever going to address the Marks rule’s problems, this case would be the time to do so. The parties and amici had identified numerous circuit splits on how to apply the rule. The Court had granted review on not one but two Marks questions. And the US Solicitor General had specifically requested that the Court issue a Marks ruling to end the confusion. Yet the Court said not a word to alleviate the problem.

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Second Thoughts on the “First View” Principle

The Justices often intone that theirs is “a court of review, not of first view,” but last Monday’s decisions illustrate the complexities underlying that maxim. In one case, the Court applied the “first view” principle without discussion. In another, it explained its choice not to follow the principle. And, in a third case, the justices divided over whether to follow the principle. These decisions illustrate that the “first view” principle is more discretionary than it often appears—and that the Court could do more to explain what guides its choices in this area

In particular, Monday’s opinions suggest that a Catch-22 has arisen. When one party raises a new position, the opposing party is apparently placed in a bind. If the opposing party responds on the merits, the fact that the issue is “fully briefed” could counsel in favor of entertaining it. But if the opposing party declines to address the new position, then the Court might entertain it precisely because the opposing party “explicitly chose not to grapple with it.” Either way, the opposing party’s reaction can be cited as a reason to rule on the new position, notwithstanding the “first view” principle.

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SCOTUSBlog Post on Dahda v. United States

I recently write the SCOTUSBlog opinion analysis for Dahda v. United States. Here’s how my post opens and ends:

The Supreme Court’s brisk opinion in Dahda v. United States awarded the government yet another exclusionary rule victory, this time in the context of a statutory provision rooted in the Omnibus Crime Control and Safe Streets Act of 1968. The justices ruled unanimously (with Justice Neil Gorsuch recused) against a defendant’s request for suppression of evidence collected under a wiretap order that authorized surveillance outside the territorial jurisdiction of the district judge who issued the order. But while the court’s decision helpfully clarifies the law, it generally tries to avoid big questions, leaving deeper debates about statutory exclusionary rules for another day.

[A]ny view of what it means for a wiretap order to be “insufficient on its face” raises the question, “Insufficient for what?” For example, an order could be facially insufficient to authorize: any surveillance at all, the surveillance that it purports to authorize, or the surveillance that is actually introduced at trial. The court seems largely to embrace the first type of insufficiency, while only indirectly touching on the other possibilities. But some readers might think that the choice among the various options is difficult—and not dictated by the dictionary definition of “insufficient.” So, consistent with the oral argument and exclusionary case law more generally, the court was guided by what, in its view, “makes sense” of the various suppression provisions involved.

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Hughes v. United States and the Effects of the Marks Rule  

Later this month, the Supreme Court will hear argument about the Marks rule, which holds that a fragmented Court decision stands for the “position taken by those members who concurred in the judgments on the narrowest grounds.” When the Court granted cert in Hughes v. United States, I expressed my hope that the briefing would explore not just how best to apply the Marks rule, but also whether the rule is worth retaining at all.

Happily, the now-completed briefing does explore that more fundamental question. The petitioner argues in the alternative that Marks be abandoned, and the United States attempts to rebut that view. I have also filed an amicus brief (now posted here on SSRN) that makes the case for abandoning the Marks rule. There are several additional amici, including a pro-Marks professors’ brief authored by Maxwell Stearns and a brief on the underlying merits question on behalf of Douglas Berman.

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