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.

Further, Thomas’s wasn’t the only separate opinion. Justice Breyer also penned a concurrence in the judgment, joined by Justice Ginsburg. Consistent with his recent dissents emphasizing stare decisis, Breyer’s Allen opinion grandly bowed to precedent. But he also emphasized some important context: he had “consistently maintained” that a seminal ruling in this area—namely, Seminole Tribe—“went astray.” As recently as 2012, in fact, Breyer had joined Ginsburg in succinctly stating: “I remain of the view that Congress can abrogate state sovereign immunity pursuant to its Article I Commerce Clause power. See Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 100 (1996) (Souter, J., dissenting).” So it is hard to know what to make of Breyer’s late-breaking admission “that my longstanding view has not carried the day.” Is Breyer really bound by precedent, or just admitting that he doesn’t have the votes to overrule it?

Let me suggest another way of looking at Allen and, more broadly, at debates about stare decisis (or the lack thereof) in the Supreme Court. In a new draft paper, I suggest thinking about precedent as a permission, not a constraint. In other words, maybe precedent’s applicability does or should function not as a mandate to rule in a particular way, but rather as reassurance that a particular approach is lawful. The obvious response to this idea, borrowing from Court decisions, is that stare decisis does nothing unless it calls for a “special justification,” that is, some reason for overruling over and above the belief that the precedent came out the wrong way. But that claim is too quick.

First, precedent works as a shortcut by helping judges and justices decide cases quickly and lawfully by telling them that it is allowable to follow the path laid by past rulings. Most of the time, resource-strapped courts are disinterested in pursuing legal questions back to first principles. Instead, they are eager to decide cases lawfully and move on, mindful of the aphorism that justice delayed is justice denied. That commonsense dynamic will foster frequent adherence to precedent, even if it’s entirely non-binding.

Second, precedent operates as a shield by encouraging judges who have been critical of precedent to put aside their past views (whether publicly expressed or not) and start respecting stare decisis. After all, if it’s always permissible to follow precedent, then even the most vehement critic of a particular decision can hold her head high as she votes to follow it. Without a doctrine of precedent, by contrast, the jurist might have to declare a 180-degree change in her considered views before she could change course.

These two points cast Allen and its opinions in a different light. The justices in the majority might have had varying degrees of confidence that the majority’s precedent-based analysis was correct. The case’s subject area is, after all, famously controversial and complicated, yielding disagreement among members of the left and right alike. But instead of going to first-principles, members of the majority could coalesce easily around a shared analysis and conclusion, without having to reinvent the jurisprudential wheel. Further, Justice Breyer seems to have taken advantage of precedent as a shield: even if he doesn’t have to follow it, Breyer may see advantages in burying the hatchet when it comes to Seminole Tribe. The doctrine of precedent gives him a face-saving, indeed, honorable, way of doing so.

So even if precedent has no binding force—that is, even if it is purely permissive in nature—precedent can still do a lot of work. In other words, there is a way in which even a fairly hard-hearted cynic can care about stare decisis without being a sucker.

First posted on Prawfs.

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