The Roberts Court has given us a lot of interesting uses of precedent, including a proliferation of doctrines that purport to dilute the power of stare decisis. The upshot is that the familiar, old-school divide between precedent and dictum has given way to a complex precedent spectrum. Below are a few examples, as well as some misgivings about them.
1. Controversial precedents. Perhaps the most conspicuous demotion of precedent during the Roberts Court appeared in the Chief Justice’s Citizens United concurrence. Tacitly breaking from Planned Parenthood v. Casey, which suggested that opposition to a case paradoxically strengthens it, the Chief concluded that past campaign finance decisions were due less respect because they were issued over dissents and remained controversial. “The simple fact that one of our decisions remains controversial is, of course, insufficient to justify overruling it,” the Chief explained. “But it does undermine the precedent’s ability to contribute to the stable and orderly development of the law.” This reasoning seems unpersuasive. The controverted nature of a decision may well increase the chances that it’s wrong, as the Court appeared to suggest in Payne v. Tennessee. Yet the mere fact that a precedent is controversial doesn’t necessarily translate into legal disorder. If anything, the fact that the dissenting view has long been in dissent suggests that the precedent at issue has been repeatedly reaffirmed, solidifying its legal status.
2. Summary precedents. In the Court’s most recent campaign finance decision, McCutcheon v. FCC, the Chief’s plurality opinion demoted part of the Court’s seminal precedent in Buckley v. Valeo, explaining that it “does not control here.” Part of the plurality’s argument distinguished Buckley as involving a meaningfully “different statute.” But the plurality also repeatedly noted that the relevant precedent consisted of “three sentences … that were written without the benefit of full briefing or argument on the issue.” In support of that point, the plurality cited to case law affording diminished precedential effect to true summary decisions issued without plenary briefing and oral argument. Though Buckley wasn’t actually a summary decision, the McCutcheon plurality treated its three-sentence holding as one, partly because of Buckley‘s remark that the relevant issue “ha[d] not been separately addressed at length by the parties.” On this view, the McCutcheon plurality arguably afforded Buckley‘s three-sentence holding even less precedential respect than a true summary decision, which (the Court has previously said) should control “the precise issues presented and necessarily decided.”
3. Common law precedents. A couple weeks ago I blogged about the connection between Michigan v. Bay Mills Indian Community and personal precedent, or each justice’s fidelity to her own past opinions. But Bay Mills is interesting even apart from personal precedent’s contribution to the precedent spectrum. The key ruling at issue in Bay Mills was Kiowa Tribe of Okla. v. Manufacturing Technologies, a common law decision regarding tribal sovereign immunity. In another 5-4 case several years ago, the Court had asserted greater freedom to revisit decisions involving “common-law statutes” like the Sherman Act, on the theory that Congress expected the Court to make policy in that area. Citing that rule, the four Bay Mills dissenters argued for overruling Kiowa. But the majority refused, in part based on congressional acquiescence. In short, Bay Mills treated a common law precedent like a statutory one. Perhaps there is a principled reason why common law precedents in certain areas, like antitrust, have a uniquely diminished status. More likely, Bay Mills signals a persisting division in the Court as to the status of the common law, with the result that litigants will have a hard time predicting the reliability of common law precedents.
Notably, the uses of precedent described above may not themselves be entitled to full precedential respect. In Citizens United and McCutcheon, the Chief’s opinions supplied critical votes, but weren’t denominated as opinions for the Court. And Bay Mills didn’t squarely confront past decisions that treated common law rulings as having diminished status. It therefore remains an open question where these “precedents about precedent” will themselves fall on the precedent spectrum.