Justice Scalia recently went out of his way to acknowledge that he’d made a mistake. No, I’m not talking about his much ballyhooed factual error from last month. Instead, I’m talking about last week’s decision in Michigan v. Bay Mills Indian Community, where Scalia’s separate dissent drew attention to a substantive change in his views on tribal sovereign immunity. Meanwhile, Justice Ginsburg dissented separately in Bay Mills in order to underscore her persistent opposition to several strands of sovereign immunity doctrine.
These dissenting opinions in Bay Mills showcase an underappreciated aspect of Supreme Court decisionmaking — namely, each justice’s special attention to his or her own past decisions, as distinguished from the decisions of the Court. This parallel and sometimes disruptive system of individualized stare decisis might be termed “personal precedent.”
By way of background, Bay Mills was a 5-4 decision that largely rested on the 1998 precedent Kiowa Tribe of Okla. v. Manufacturing Technologies, which concerned the scope of tribal sovereign immunity. Justice Thomas wrote the lead dissent arguing that Kiowa should be overturned. He collected an unusual coalition consisting of Justices Scalia, Ginsburg, and Alito.
Because Justice Scalia joined the principal dissent, he didn’t have to write separately. Yet he did. In particular, Scalia wrote his own one-paragraph dissent noting that he himself had signed onto Kiowa. As Scalia bluntly put it, “Rather than insist that Congress clean up a mess that I helped make, I would overrule Kiowa and reverse the judgment below.”
Meanwhile, Justice Ginsburg also filed a separate dissent. Ginsburg lead off her roughly page-long discussion by pointing out that she was among the original dissenters in Kiowa, which she still believed ought to be overruled. But Ginsburg also pointed out that she’d dissented from a number of state sovereign immunity cases. Neither type of sovereign immunity, Ginsburg asserted, “will have staying power.” Consistent with those views, Ginsburg has continued to dissent from the Court’s state sovereign immunity cases while noting her disagreement with the governing precedents (see footnote 1 of Justice Ginsburg’s Coleman v. Court of Appeals of Maryland dissent, for example, which was joined by Justice Breyer, another persistent dissenter, but not by Justices Sotomayor and Kagan, who weren’t on the Court when the relevant precedents issued).
The Bay Mills dissents reflect the justices’ frequent concern for personal consistency, as distinct from consistency with Court precedent. These two forms of stare decisis can come into conflict, particularly when justices adhere to their own past concurrences or dissents, instead of binding precedents issued by the Court. Justice Ginsburg’s Bay Mills and Coleman dissents are arguably examples of that phenomenon. (For related critical discussion, check out this essay on “Perpetual Dissents” by Allison Orr Larsen.)
Scalia’s separate dissent in Bay Mills likewise springs from his desire to account for the force of personal precedent. Though not entirely clear, it seems that Scalia had to overcome not just the traditional precedent of Kiowa, but also the personal precedent that he established in that case. Scalia’s attention to personal precedent might play an important role in other cases this term. For example, commentators have suggested that Scalia’s past writings might cause him to become the unlikely “savior” of public sector unions.
Yet Scalia’s dissent also illustrates that personal precedent can have unexpected consequences. The Bay Mills majority argued that common law precedents like Kiowa should be super-strong, since they are susceptible to legislative override. But Scalia’s Bay Mills dissent seemed to turn that idea around, based on Scalia’s own personal sense of responsibility: Scalia had “helped make” what he regarded as “a mess,” so it was up to him (not Congress) to “clean [it] up.” Remarkably, Scalia cast his personal precedent in Kiowa as a kind of anti-precedent, justifying corrective measures.
For what it’s worth, I tend to be skeptical of personal precedent. For example, whether Scalia and Ginsburg personally concurred or dissented in Kiowa seems irrelevant to whether those justices should have dissented in Bay Mills. If generally applicable criteria for overruling are met, then overrule; if not, then not. Any other approach would undermine the stabilizing norm that dissenters today are fully bound by the majority tomorrow. But I can see points on the other side. For instance, the justices seem to care about personal precedent, perhaps because it’s linked to their public images or legacies, and it’s typically better for them to be open about their reasons for decision. More broadly, there are accountability, predictability, and other pragmatic benefits associated with candidly confessing personal error, even (or especially) when doing so isn’t necessary.
Whether for better or worse, personal precedent likely hasn’t made its last appearance in OT2013.