Theories of Precedent
Theories of Precedent
Abstract and Keywords
This chapter critically examines the most prominent theories which social scientists and legal scholars have developed to explain the role of precedent in constitutional law. It shows that legal variables matter more to the outcomes of cases than social scientists typically acknowledge, but less than many legal scholars claim. Nor, for that matter, have legal scholars been able to dismiss altogether the relevance of external factors to constitutional decision making, including the justices' personal attitudes about constitutional law and policy preferences.
Legal scholars and social scientists propose what they proclaim as superior positive accounts of the legal and constitutional significance of precedent. In this chapter I discuss the most prominent theories of precedent proposed by legal scholars and social scientists, their relative merits, and the tensions among them.
1. The Relative Merits of the Weak View of Precedent
Legal scholars generally advance a weak or strong view of precedent. In the weak view of precedent, the Court owes little or no deference to precedents. The strong view of precedent perceives precedents as the principal, or most meaningful, touchstone in constitutional law. As I explain below, neither view withstands close scrutiny.
1.1 The Origins of the Weak View of Precedent
In an excellent article,1 Thomas Lee places in historical context what I understand as the weak view of precedent. He explains the Framers and Ratifiers were heavily inXuenced in their thinking about precedent by leading 17th‐ and 18th‐century British scholars and judges, particularly William Blackstone.2 According to Lee, Blackstone conceived of precedent in terms of the “declaratory theory” of law. This theory “h[eld] that the Law had a ‘Platonic or ideal existence’ before it was ever reduced to a judicial opinion. On this view, any decision deemed inconsistent with this ‘ideal’ need not be overruled but could be simply superseded by a new decision as a ‘reconsidered declaration as a law from the beginning.’ ”3 Lee explains that those who shared this view believed that “a judicial decision was not law, but mere evidence of it, and accordingly could be disregarded by a subsequent court. Subsequently, common‐law courts and commentators ‘began to speak of a qualified obligation to abide by past decisions,’ under which precedents could still be set aside, but only if manifestly absurd or contrary to reason or custom.”4 Lee suggests the transformation toward the modern approach of requiring special justifications for overruling did not stabilize until the late 19th century.5
(p.48) While Lee's account is consistent with other scholarship,6 modern readers may find it odd to treat common law as the model for constitutional adjudication, given that statutes may displace common‐law decisions but not constitutional rulings. Yet, the common law, like a good deal of the Court's decisions, was predicated on incremental decision making. In common‐law adjudication, a single decision was less important and binding on other judges than a series of precedents that set forth the law more fully and clearly over time.7 Nineteenth‐century judges who followed this approach—and most did—clarified constitutional law through distinctions and analogies rather than overruling.8
As Lee shows, the general conception of constitutional precedent during this era was not static but rather in Xux.9 Although, as we saw in the first chapter, justices sometimes discussed at length their justifications for overruling prior decisions, they discussed less rarely and comprehensively the particular differences among constitutional, statutory, and common‐law precedents.10 Indeed, nineteenth century commentators generally neglected to discuss either the relationships among the different kinds of precedents or where precedents fit within the hierarchy of sources of constitutional meaning. For instance, Thomas Cooley, an eminent constitutional commentator in the 19th century, barely addresses these subjects in his major constitutional treatise. He offers no extended analysis of the nature of precedent beyond merely asserting (with apparent approval) that the Court approached its precedents in common law like fashion.11 Near the end of the 19th century, D. H. Chamberlain observed, “We know of no authorities which have discussed or answered [whether the doctrine of stare decisis ought to apply in the same way to both constitutional and common‐law adjudication]; we do not even know that it is regarded in the forum of the profession or of jurists and judicious law‐writers as an open question.”12
It is plausible that the reticence about the propriety of analogizing constitutional adjudication to the common law in the late 18th and early 19th century might be attributable to the fact that constitutional adjudication was novel to the Framers. Prior to the drafting and ratification of the Constitution, Americans had little, if any, meaningful experience with constitutional adjudication. The Framers and Ratifiers had firsthand experience with common law precedents, but not with constitutional ones; they had no precedent for handling constitutional precedents. Consequently, American lawyers and jurists may have needed time—almost a century— (p.49) to develop a coherent doctrine to clarify the relationships among the different kinds of precedents in the legal system.
The Framers' apparent reticence to talk at length about the relationships among the different kinds of precedents (and where, in particular, precedents fit within the hierarchy of sources of constitutional meaning) requires some explanation. The most obvious is that the Framers were fallible; they failed to anticipate every problem that could arise under the Constitution. As Larry Kramer suggests,13 the Framers and Ratifiers primarily focused on the big picture. While constitutional stare decisis was not a part of their big picture, it is a part of ours. The Framers and Ratifiers may not have expected much litigation over constitutional issues. The filing of lawsuits raising constitutional issues is a modern phenomenon. The fact that constitutional litigation was rare meant justices easily could distinguish precedents and avoid direct conXicts among the precedents.
Yet, as early as the late 18th century, Supreme Court justices recognized the importance of avoiding questions of constitutional law to minimize their constitutional decision making and to leave as much play within the joints of the public sector as possible.14 The Court continues to follow the avoidance canon, which is predicated on recognizing the near impossibility of overturning constitutional precedents.
Moreover, other developments suggest the likelihood that justices appreciated the constitutional significance of precedents as early as the 1790s. The fact that the Court's first major mistake in constitutional interpretation—allowing a state to be sued by a citizen from another state, Chisholm v. Georgia15—was overturned by a constitutional amendment, not a statute, is strong evidence that national leaders at the time recognized an essential difference between constitutional and common‐law precedents. After all, federal authorities at the time moved quickly to overturn the precedent not through a statute (to which they would have resorted had they been dealing with a common law precedent) but a constitutional amendment. In the early years of the republic, national leaders employed various mechanisms to retaliate against constitutional precedents with which they disagreed, including abolishing the Court's term, regulating the Court's size and jurisdiction, and trying to remove federal judges with obnoxious views.16 They quickly recognized that the most promising means for modifying precedents was appointing justices committed to deciding issues differently. Supreme Court selection up until the Civil War (p.50) was intense, and its intensity suggests the awareness that appointments could transform the Court and its precedents.
The fact that the Court barely overruled a handful of cases within its first 100 years not only confirms its incremental approach to constitutional decision making, but also raises a strong inference—confirmed further by discussions in several opinions—that the Court did not lightly overturn its constitutional precedents.17 For instance, some 19th‐century justices had relatively settled views on the legal status of constitutional precedents well before the end of the century. Consider, again, Justice Strong's opinion from Knox v. Lee: “We have been in the habit of treating cases involving a consideration of constitutional power differently from those which concern merely private right.”
Justice Strong's reference to the Court's “habit” might have alluded “to the rule of practice requiring ordinarily the concurrence of a majority of a full court in the decision of constitutional cases” as the Court held years before in Briscoe v. Bank.19 Alternatively, Strong's statement might refer to the well‐settled differences in the Court's approach to reconsidering constitutional and common‐law precedents. The rule requiring “the concurrence of a majority of a full court in the decision of constitutional cases” appears to derive from the Court's recognition that constitutional cases are different and special care needs to be taken when they are being reconsidered. It is telling that the Court deferred to a precedent—Briscoe—in the course of explaining its approach to reviewing constitutional precedents.
Recall, in his concurrence, Justice Bradley states, “On a question relating to the power of government, where I am perfectly satisfied that it has the power, I can never consent to abide by a decision denying it, unless made with reasonable unanimity and acquiesced in by the country.”20 Justice Bradley may be suggesting the conditions under which constitutional precedents may be transformed from weak to strong. In dissent, Justice Stephen Field disputed that there had been any defects in the process by which the Court decided the first legal tender decision and expressed his “hope that a judgment thus reached would not be lightly disturbed.”21 These comments similarly suggest that at least some, if not most, justices of the era recognized that constitutional precedents should be given some deference by the Court and overruled only for special reason(s).
The Court's jurisdiction and docket expanded in the New Deal era, during which pleas to overrule precedent intensified. These pleas coincided with (and may have been encouraged by) some justices' expressions of a weak view of precedent.22
William O. Douglas was one such justice. In an article published midcentury, he vigorously defended his weak view of precedent. He explained,
A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it. So he comes to formulate his own views, rejecting some earlier ones as false and embracing others. He cannot do otherwise, unless he lets men long dead and unaware of the problems of the age in which he lives do his thinking for him.23
Even though the mind‐set Justice Douglas describes risks destabilizing constitutional law, he defended any
Xux [as] healthy … The alternative is to let the Constitution freeze in the pattern which one generation gave it. But the Constitution w as designed for the vicissitudes of time. It must never become a code which carries the overtones of one period that may be hostile to another.24
Justice Douglas' weak view of precedent derived from his perspective as an intellectual leader of the legal realist movement. Douglas, like other legal realists, believed legal doctrine was written primarily to protect or extend the ruling elite's power. Legal realists dismissed the formalities of legal reasoning as obfuscating what was really happening; so they insisted, like Douglas, on clarity and candor in judicial decision making as well as receptivity to insights (and methods) from the social sciences. Douglas praised the Hughes Court's overruling of precedents as “removing from constitutional doctrine excrescences produced early in the century. The tendency has been to return to older views of constitutional interpretation, (p.52) and to sanction governmental power over social and economic affairs which the Court beginning in the 80's and particularly in the preceding ten to thirty years had denied. Only if this is understood can the work of the period be put into clear perspective.”25 Douglas stressed the importance of candor in deciding cases: “[T]he more blunt, open, and direct course is truer to democratic traditions … The principle of full disclosure has as much place in government as it does in the market place. A judiciary that discloses what it is doing and why it does it will breed understanding. And confidence based on that understanding is more enduring than confidence based on awe.”26
Justice Douglas' weak view of precedent is apparent in his judicial opinions. In one dissent, he declared, for instance, the Court's “decisions … do not bind us, for they [have] dealt with matters of constitutional interpretation which are always open.”27 He reiterated the “irrelevan[ce of stare decisis] if we dealt with a constitutional matter, as issues of that magnitude are always open for reexamination.”28 He never hesitated to express his disagreement with the Court's failure to overrule decisions with which he disagreed.29
Douglas' fellow New Dealer and colleague, Justice Black, shared his disdain for precedent as authority for decision making. Justice Black thought of himself as a textualist who rigidly adhered to the plain meaning of the Constitution's language.30 In an early dissent, he declared, “A constitutional interpretation that is wrong should not stand.”31 His weak view of precedent is evident from the fact that during his 34 years on the Court no one with whom Black served urged more overruling of precedents than he did.32
The Warren Court's defense of the rights of minorities was often challenged as deviating from the common‐law method of adjudication. While the late Philip Kurland never described the Warren Court as having been motivated by a “weak view of precedent,” it appears to be consistent with his complaint that the
list of opinions destroyed by the Warren Court reads like a table of contents from an old constitutional law casebook. The willingness to disregard stare decisis … has a worthy pedigree. But the volume and speed of the Warren Court as it engaged in this enterprise have never been witnessed before. One can only think that the Warren Court was taking its guidance from a quotation (p.53) from a position used by Mr. Justice Sam Ervin, Jr., of the North Carolina Supreme Court: “There is no virtue in sinning against light or persisting in palpable error, for nothing is settled until it is settled right.” On the other hand, it was early in the Supreme Court's history that Mr. Justice Baldwin said: “There is no more certainty that a late opinion is more correct than the first.”33
Kurland urged the Court “to adhere to the step‐by‐step process that has long characterized the common‐law and constitutional forms of adjudication.”34
On the Rehnquist Court, the justices who most often expressed a weak view of precedent were Justices Scalia and Thomas. Immediately after his appointment to the Court in 1986, Justice Scalia directly challenged decisions he deemed mistaken. His challenges extended to numerous areas of constitutional law, including the establishment clause, abortion rights, separation of powers, freedom of speech, criminal procedure, abortion, the takings clause, and affirmative action.35 His apparent attachment to a weak view of precedent was further reXected by his citing Justice Douglas as a precursor to his own position on precedent.36 Over the years, Justice Scalia has urged overruling precedent with less frequency, but when he has done so he has increasingly cited both error and special justifications in support of overruling. This is partly because he is defending decisions in which he joined. For instance, he sharply questioned the special justifications the majority claimed in support of its overruling of Bowers v. Hardwick, and suggested that various factors argued against overruling the 1890 decision in Hans v. Louisiana, even though it might have been erroneous. In 2005, Justice Scalia declared that he, unlike Thomas, really respected precedent.
Justice Thomas expressed a weak view of precedent more often than Justice Scalia. Their different attitudes about precedent are evident in Van Orden v. Perry,37 in which the Court, 5–4, held the establishment clause does not forbid a public display of the Ten Commandments along with other historical and religious markers . Although Chief Justice Rehnquist's plurality opinion did not question the validity of any precedents, Justice Scalia suggested in concurrence that he would prefer to reach the same result “by adopting an Establishment Clause jurisprudence that is in accord with our Nation's past and present practices, and that can be consistently applied—the central relevant feature of which is that there is nothing unconstitutional in a State's favoring religion, generally.”38 In his concurrence, Justice Thomas suggested that the case would have been (p.54)
easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges, and return to the original meaning of the Clause … I have previously suggested that the Clause's text and history resist ‘incorporation’ against the States. If the Establishment Clause does not restrain the States, then it has no application here, where only state action is at issue. Even if the Clause is incorporated, or if the Free Exercise Clause limits the powers of the States to establish religions, our task would be far simpler if we returned to the original meaning of the word “establishment” than it is under the various approaches this Court … uses.39
While Justices Scalia and Thomas appear willing to overrule many precedents, Justice Thomas seems prepared to overrule more of them than Justice Scalia.
1.3 The Academic Defense of the Weak View of Precedent
Over the last two decades, the weak view of precedent has been popular among conservative commentators. While some liberal scholars have expressed a similar view,40 conservatives have asserted a weak view of precedent more openly and boldly than their liberal counterparts. Because of the possible appeal of their assertions, they merit close attention.
One of the most prominent proponents of a weak view of precedent is Robert Bork. Indeed, this view was one basis for the Senate's rejection of his nomination to the Court.41 In a book written shortly after his rejection, Bork responded to the charge made against his nomination that his unyielding commitment to original meaning could not be implemented without producing havoc in constitutional law.42 Bork reconciled this tension by proposing three guidelines for reconsidering constitutional precedents: (1) lower courts should respect precedent more rigorously than the Court itself; (2) the Court should never overrule any decision unless it finds that the case was wrongly decided; and (3) the Court should not overrule prior erroneous decisions when that would seriously disrupt well‐established government structures or practices, such as the printing of paper money.43
The late Raoul Berger asserted a more aggressive weak view of precedent. Berger argued that, with few practical limitations, it was more important for the Court to answer constitutional questions correctly than (p.55) to perpetuate errors. He expected the Court's willingness to uphold mistaken precedents to produce instability (and incoherence), whereas the Court's renewed commitment to original meaning would promote stability over the long run. He explained that in considering the appropriate criteria for overruling constitutional precedents “we should separate legal from pragmatic considerations. On the legal issue, … ‘that which is wrong in the beginning cannot become right in the course of time.’ Usurpation is not legitimated by repetition.”44 While Berger conceded “[w]hatever consequences might follow [from a particular overruling] should be weighed against the integrity of the Constitution and the unconstitutional revision of the instrument by the judiciary,”45 he rarely found “consequences” to be sufficiently weighty to warrant foregoing the overruling of erroneous interpretations.46
Several conservative constitutional scholars who came of age in the 1980s reject Bork's and Berger's willingness to balance competing considerations. They propose mistaken precedents are unlawful, any wrongly decided cases should be overruled, the doctrine of constitutional stare decisis is policymaking (which the Court or Congress may displace), and mistaken decisions should have no binding effect other than on the parties to the original lawsuits.47 But their weak view of precedents turns out to be more problematic than Bork's or Berger's.
1.4 The Limits of the Weak View of Precedent
There are several problems with the weak view of precedent advanced in recent scholarship. First, the Court has never actually embraced a weak view of precedent. At most, this perspective has been expressed in some concurrences and dissents, but not in majority opinions. Even justices who apparently favored a weak view of precedent did not consistently follow it. While one of Justice Black's sympathetic commentators observed that he “accorded to long established precedent a minimum of respect and showed scant compunction in overruling it,”48 Black's disdain for precedent was not absolutist. In dissenting to the Court's holding in Green v. United States49 that criminal contempt is not subject to the same constitutional guarantees as other criminal proceedings, Justice Black explained,
Ordinarily it is sound policy to adhere to prior decisions but this practice has quite properly never been a blind, inXexible rule. (p.56) Courts are not omniscient. Like every other human agency, they too can profit from trial and error, from experience and reXection. As others have demonstrated, the principle commonly referred to as stare decisis has never been thought to extend so far as to prevent the courts from correcting their own errors. Accordingly, this Court has time and time again from the very beginning reconsidered the merits of its earlier decisions even though they claimed great longevity and repeated reaffirmation … Indeed, the Court has a special responsibility where questions of constitutional law are involved to review its decisions from time to time and where compelling reasons present themselves to refuse to follow erroneous precedents; otherwise its mistakes in interpreting the Constitution are extremely difficult to alleviate and needlessly so.50
Black's statement sounds as if he is rejecting a strong view of precedent rather than unequivocally embracing a weak view of precedent.51
Felix Frankfurter, Black's intellectual nemesis on the Court, began his career with a weak view of precedent but gradually moved away from it as a justice. More than 20 years before joining the Court, Frankfurter suggested that “the doctrine of stare decisis has no legitimate application to constitutional decisions where the court is presented with a new body of knowledge, largely non‐existing at the time of its prior decision.”52 A decade later, Frankfurter added that “historic continuity in constitutional construction does not necessarily mean historic stereotype in application. To what extent respect for continuity demands adherence merely to what was, involves the art of adjudication—raises those questions of more or less that ultimately decide cases.”53 The degree to which precedent constrained decision making depended, in other words, on determining its relevance to a current dispute; and Frankfurter did not seem reluctant to draw distinctions to advance his preferred constitutional visions.
On the Court, Frankfurter gravitated toward a strong view of precedent. In 1946 he explained in a letter to then‐Chief Justice Harlan Fiske Stone,
Law as a living force in society must make adaptation and from time to time and slough off the past, but … law implies certain continuities, or, at the very least, a permeating (p.57) feeling that stability as well as change is an element in law. Past decisions ought not to be needlessly overruled. If this is done with sufficient frequency, the whole notion of law is discredited.54
Frankfurter considered consistency and stability in constitutional law as essential and thus held onto a relatively consistent (but nonabsolutist) respect for precedent over time. In 1950 he declared, “Especially ought the Court not to reinforce needlessly the instability of our day by giving fair ground for the belief that Law is the expression of chance—for instance, of unexpected changes in the Court's composition and contingencies in the choice of successors.”55 He explained that “shifts of opinion” on the Court “should not derive from mere private judgment. They must be duly mindful of the necessary demands of continuity in civilized society. A reversal of a long current of decisions can be justified only if rooted in the Constitution itself as an historic document designed for a developing nation.”56 In one concurrence, Frankfurter emphasized that the past behavior of the Court as reXected in more than 40 cases on the legitimacy of the justices' contempt power carried a good deal of weight. He even listed all of the past justices who had sustained the exercise of power that the Court reaffirmed in the case.57 While agreeing with Black that the Court was free to correct obvious mistakes or to modify a rule of law that had been only occasionally applied, Justice Frankfurter did not agree with Black that “everybody on the Court has been wrong for 150 years and that which has been deemed part of the bone and sinew of the law should now be extirpated.”58
Both Chief Justice Rehnquist and Justice Scalia appeared to increasingly distance themselves from a weak view of precedent. After becoming Chief Justice, Rehnquist apparently modified his attitude toward precedent. As Chief Justice, he rarely urged overruling precedents simply because they were wrongly decided. Since 1987, the closest he came to that position was his partial dissent in Casey, in which he suggests that Roe was erroneous from the day it was decided and that its error, combined with other factors, necessitates its overruling.59 After boldly urging his colleagues to overrule a wide range of wrongly decided precedents in his first few years on the Court,60 Justice Scalia acknowledged in 1996 that the Court's traditional approach had been to overrule constitutional precedents if it had “special justifications” to do so.61 In First Amendment (p.58) cases, he defended relying on precedent despite its potential conXict with the original meaning:
Originalism, like any theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew. It is of no more consequence at this point whether the Alien and Sedition Acts of 1798 were in accord with the original understanding of the First Amendment than it is whether Marbury v. Madison was decided correctly.62
Thus, he explained, “originalism will make a difference … not in the rolling back of accepted old principles of constitutional law but in the rejection of usurpatious new ones.”63 Subsequently Justice Scalia did not back down from challenging precedents with whose reasoning he disagrees, but he has modified his opposition by consistently including many reasons for overruling them, not just their having been initially wrongly decided.64
Even Justice William Brennan, who some commentators say had a weak view of precedent,65 acknowledged that a justice can routinely dissent in no more than a handful of areas before he has impaired his ability to build coalitions.66 Justice Brennan routinely dissented in only a few areas of constitutional law, including capital punishment, obscenity, the Eleventh Amendment, and double jeopardy.67 While some critics suggest Justice Brennan manipulated precedent and lacked the candor to challenge precedent directly, they fail to explain why the manipulation or distortion of precedent is a common practice on the Court or why Justice Douglas' or Scalia's candor has not been embraced more often by the former's liberal or the latter's conservative colleagues.
Apart from its lacking support from the Court, a weak view of precedent conXicts with the primary sources of constitutional meaning—text, structure, and original meaning. These sources fully support the lawfulness of precedent. For example, the Constitution explicitly authorizes the lawfulness of precedent. Article III provides that the judicial power of the United States extends to “cases or controversies.”68 The plain implication of this grant of authority is that the cases or controversies decided by the Court are legitimate exercises of its authority. The creation of precedents is a lawful exercise of judicial authority. Moreover, Article III's grant of authority to the federal judiciary is not restricted to a single case or controversy. (p.59) The Court may exercise judicial review over more than one case arising in a given area of constitutional law. The more cases the Court decides in particular doctrinal areas, the more precedents it makes in those areas.
The exercise of Article III judicial power entails deliberating over how it ought to be exercised. Deciding cases entails determining how much weight to accord to precedent and other sources of constitutional meaning. As Richard Fallon argues, “The power to say what the Constitution means or requires—recognized since Marbury v. Madison—implies a power to determine the sources of authority on which constitutional rulings properly rest.”69 Deciding a case or controversy necessarily requires making choices about which sources to use and how. Given the implications of the Court's explicit power to decide cases or controversies, it is hard to see how any statute that restricts this power—e.g., dictating the scope of things the Court may consider in deciding cases or controversies—could avoid violating the core judicial power “to say what the law is.”70
Three hypothetical statutes illustrate the limits of congressional power to direct the Court to increase or decrease its deference to precedent. Imagine, first, a statute that mandates in deciding questions of constitutional meaning that the Court may only consider the original meaning. Imagine the second directs that in exercising judicial review the Court should adopt James Bradley Thayer's classic test for determining the constitutionality of legislation, that is, that the Court may overrule only those legislative interpretations of the Constitution embodied in statutes that are “clearly erroneous.”71 Suppose a third statute requires that once the Court correctly decides a constitutional question it must never address the merits of that question again.
Each of these statutes is unconstitutional, and each is unconstitutional for the same reason: Each violates the boundaries separating judicial from legislative power. The first statute restricts the Court from deciding a case or controversy on the basis of sources of constitutional meaning on whose legitimacy virtually everyone would agree, including the text and structure of the Constitution. The second statute effectively imposes a standard of review for the Court to follow in every case involving the constitutionality of a congressional enactment that is likely to conXict with some if not many of the constitutional principles or standards governing the exercises of congressional power at issue. Even if the third statute were understood as defining how correct interpretations of the Constitution (p.60) may be made, it is hard to square with our Constitution, which sets forth no such instructions explicitly. The Constitution is silent on how the Court should go about deciding constitutional questions. Moreover, the third statute requires the Court to accept another branch's interpretations of the Constitution as correct and therefore final (and thus immune to further judicial review). It would, therefore, force at least some justices to follow constitutional interpretations with which they disagree. It is one thing for the Court to defer to an interpretation of the Constitution which both the Court and Congress agree is within the Congress' power to make, but it is another for Congress to dictate to the Court which interpretations it must follow in deciding cases. Justices' constitutional duties and oaths argue in favor of their having the freedom to decide for themselves the basic matter of what the Constitution means or requires in a case that falls within their jurisdiction.72 If some subsequent justices have reason to view some prior interpretation of the Constitution as incorrect, they may argue that foreclosing them from expressing this view allows a mistake in constitutional law to persist. The mistake might foreclose a right from protection, preclude a lawful power from being exercised, or allow a power to be employed illegitimately. But, in determining what the law requiring their interpretation in the cases that come before them, justices may not be compelled by political authorities to perpetuate what the justices regard as errors in constitutional law.
Other constitutional provisions further restrict congressional regulation of the Court's reasoning about precedents. For example, the Constitution provides limited means for directly regulating the Court, including adjusting the Court's size and jurisdiction, impeaching and removing justices for “treason, bribery or other high crimes and misdemeanors,”73 appointing new justices, and amending the Constitution. Of these methods, amending the Constitution seems ideally suited to directly overturn mistaken constitutional interpretations.74 The amendment procedure authorized by Article V is predicated on the addition of amendments to the Constitution in the order in which they have been ratified. The amendment procedure entails sequencing or incremental changes in the Constitution. The sequencing implies a gradual development in constitutional law during which there will be times when some understandings of the Constitution are in effect unless or until they are overturned by an amendment. In other words, the amendment procedure (p.61) contemplates that constitutional law will not be static. It will develop over time, and as it develops, presumably choices in implementing the Constitution will be made by the Court and other actors in the course of exercising their respective powers that presumably will remain in effect unless they are displaced by constitutional amendment.
The Court's inherent authority obviously extends to doing what courts conventionally do—produce opinions. But when the Court shifted from its practice of issuing seriatim opinions to Chief Justice Marshall's preferred practice of having opinions given in the name of the Court, the shift was compelled not by the Constitution, but by Marshall's management of court personnel and resources. The discretion to package Court opinions as it sees fit falls squarely within the scope of the Court's inherent authority. The Court retains the discretion to return, if it chooses, to its prior practice of issuing a series of opinions from the justices rather than a single opinion of the Court. The Court thus could choose not to issue an opinion of the Court (or a majority) on anything, including stare decisis. There would be nothing to which one could point as the Court's “reasons” for a constitutional judgment. At most, there would only be some justices' explanations for their votes in a constitutional case or controversy, and these explanations would only be made to the length or in the depth to which each justice saw fit.
The Court could go further. The Court might choose simply to forego issuing any opinions whatsoever, including opinions seriatim. Nothing precludes the Court from deciding to forego opinion writing of any kind and to issue instead a terse statement on the bottom line of its judgment on affirming or reversing the case on appeal.
If the Court were to make any of these choices on the packaging of its opinions, it is hard to see how the Constitution allows the Congress to order them to do otherwise. Article III's grant of power to Congress to make exceptions to the Court's jurisdiction as it deems appropriate hardly constitutes a grant of authority to Congress to dictate to the Court the forms, much less the content, of its opinions. Congress could not compel the Court to disclose or elaborate on why it decided a particular case or controversy the way it did. Even the stated reasons of a decision are not necessarily an exhaustive account of what the Court considered in resolving the merits of a constitutional question. One need only brieXy peruse the papers of particular justices to get some idea of the volume of (p.62) communications or exchanges between the justices that never enter into the official reports of the Court.
Moreover, there are no rules governing the contents of written opinions. They contain as little or as much as the justices choose to write. Nothing in the Constitution directs them to issue opinions, much less what to say in them. The reasoning in opinions need not be exhaustive. The building of coalitions necessarily involves strategic choices not just with respect to outcomes but also content.75 Consequently the content is a function of the majority's preferences. The choices of whether and what to publish are inherently judicial, not legislative. The Constitution, in short, does not compel the Court to announce anything more than the bottom line of its judgment—that is, who wins or loses.
Prior to Chief Justice Marshall's tenure, the actual precedential affect of a decision could be determined only by stitching together the reasoning of the justices in the majority. Given that there was no opinion for the Court, but rather seriatim opinions, one would have had to develop a matrix to determine how many justices agreed to what. What became precedent under these circumstances depended on what subsequent justices calculated had been done in earlier series of opinions. There was, in effect, no precedent until a later majority declared what it was. The legitimacy of prior judgments depended on the Court's judgment, which would presumably have been immune to interference except by the narrow means of the Court's overturning itself or a constitutional amendment.
An additional inference from the structure of the Constitution (and from historical practices) is that the doctrine of constitutional stare decisis is best understood as the justices' assessments of the likely consequences of affirming or overruling precedents. Consequentialist reasoning is a lawful exercise of judicial power; the justices are merely assessing how their decisions will fit within the constitutional structure (of which the legal system is a part). The assessment of decisions' consequences has long been recognized by the Court as a traditional source of constitutional decision making.76
This practice is so long‐standing and common that it would be hard, if not impossible, to list all of the occasions on which some or all justices considered institutional ramifications in resolving constitutional disputes. Two early, now classic instances in which the Court decided cases on such grounds are Martin v. Hunter's Lessee77 and McCulloch v. Maryland.78
Many scholars have not only acknowledged the propriety of the Supreme Court's reliance on such assessments in its constitutional (p.63) decision making,79 but some, such as Judge Richard Posner,80 have gone further to argue that balancing the costs and benefits of possible rulings is the only coherent and intellectually honest way to formulate constitutional doctrine. In short, it is more accurate to think of the doctrine of stare decisis as constituting consequentialist reasoning rather than judicial policymaking and as such a traditional mode of constitutional argumentation. If the Congress had no power to preclude the Court from employing consequentialist reasoning, the same holds true for the doctrine of constitutional stare decisis, which is a species of it. Indeed, the doctrine reXects the Court's taking into account the institutional and social ramifications of overruling constitutional decisions. Few would dispute that, regardless of whether one disagrees with the legitimacy of the Court's grounding of its decisions on institutional analysis, the Congress lacks any authority to restrict the Court from taking such considerations into account in disposing of cases or controversies. Assessing these considerations is a core judicial function and as such is immune to direct attack by Congress.
An additional difficulty with the argument that only the “correct” judicial decisions are constitutional law is that a reasonable inference from the structure of the Constitution is that the Court will sometimes not decide constitutional questions correctly, however one measures correctness. Otherwise the Framers would never have provided for checking mechanisms against the Court's decisions, including congressional control over the size and funding of the Court and, in particular, a process for overturning decisions through constitutional amendment. The Framers did not expect any branch of government, including the judiciary, to have a monopoly on perfection. There is nothing to suggest they did. Nor did they ever suggest that mistaken constitutional judgments by any branch of government, particularly the Court, were something other than law.
Lastly, the justices' standards for reviewing their precedents have the same legal stature as their criteria for protecting substantive constitutional interests. Congress has no power to dictate to the Court the principles it ought to use in deciding constitutional cases, because requiring the Court to follow some principles rather than others is an unlawful exercise of judicial power by Congress, and the choice of what principles to apply in constitutional cases is left to the Court's judgment. If it chooses to apply a standard or principle from an earlier case (or line of cases), that choice, too, is for the Court to make. And if the Court reconsiders standards or principles it has previously employed in the course of trying to figure out (p.64) which standards or principles ought to apply in particular cases, those are just other choices which fall within the Court's inherent judicial power.
2. The Relative Merits of the Strong View of Precedent
The preceding arguments against the weak view of precedent are hardly definitive. At best, they undermine the weak view in its most aggressive manifestation. They leave open the possibility that a weak view of precedent, albeit problematic, may be less problematic than competing perspectives. To assess the relative appeal of the weak view of precedent, we must turn to its opposite. Yet, the strong view of precedent is, as the next section shows, at least as problematic as its counterpart, particularly in light of the implications of the empirical data gathered by social scientists.
2.1 The Case for the Strong View of Precedent
Support for a strong view of precedent derives from all the traditional sources of constitutional meaning. For instance, Article III explicitly empowers the Supreme Court to decide cases or controversies,81 and decided cases or controversies are precedents. Moreover, the structure of the amendment process is predicated on precedents as expressions of constitutional law. Until such time as an amendment is formally ratified, the governing, or pertinent, law is dictated and shaped at least in part by what the Constitution and the Court say. The status quo constitutionally is left intact until the Constitution has been amended, and judicial precedent fills the void in the meantime.
Further support for the strong view of precedent derives from two long‐standing practices. The first is the Court's steadfast adherence to some constitutional decisions generally regarded as wrongly decided. Examples may be the decisions upholding the constitutionality of legal tender82 and counting corporations as “persons” who are entitled to the protections of the Fourteenth Amendment due process clause.83 While some scholarship casts these holdings into doubt,84 the Court adheres to them.
A second, long‐standing practice is the Court's commitment to doctrine grounded primarily on judicial precedent. One example is the Court's Eleventh Amendment jurisprudence. After the Supreme Court ruled in Chisholm v. Georgia85 that the Constitution did not preclude a lawsuit from being filed against the state of Georgia by a citizen from another state, the (p.65) Eleventh Amendment was quickly ratified to overrule it. The plain meaning of the language in the amendment86 suggests it establishes a Xat rule forbidding any federal lawsuit filed by or against a state by a citizen from another state.
The Court has not, however, construed the Eleventh Amendment so narrowly. Instead, it has held that the Eleventh Amendment reXects a broad conception of state sovereignty that bars any federal or state lawsuits filed by or against a state by citizens of the same or different states. The principal source for these holdings is not constitutional text or original meaning,87 but rather precedent. Indeed, Justice Stevens characterized the state sovereign immunity protected by the Eleventh Amendment as deriving principally from “judge‐made law.”88 The foundation for the modern Eleventh Amendment doctrine is the Court's 1890 decision in Hans v. Louisiana.89 Though Justice Scalia acknowledges Hans might have been erroneous,90 he supports Hans as firmly settled, and joined opinions expanding Hans to support broad, robust state sovereignty protected by the Eleventh Amendment.91
The Seventh Amendment92 is another area in which judicial precedent constitutes the primary source for the doctrine constructed by the Supreme Court. Seventh Amendment doctrine deals with the right to jury trials and judicial authority to review jury verdicts, but it is frequently criticized for inconsistency and incoherence.93 The primary source for the doctrine is precedent, not original meaning or the text of the Constitution.94
These examples hardly definitively establish the strong view of precedent. Nor has the Court endorsed such a view. Indeed, everyone is bound to consider certain decisions as so awful as to require overruling. Moreover, the Court's position on constitutional stare decisis—granting precedents some but not much deference95—hardly reflects a strong view of precedent.
Nevertheless, the strong view of precedent merits close attention. First, it is evident in some areas of constitutional law and in particular opinions of some justices. Even limited applications, or endorsements, of a strong view of precedent may help to illuminate precedent's role in constitutional law. Second, it appeals to anyone who puts a premium on stability and consistency in constitutional law, or has a Burkean affinity for tradition.96 Third, precedent is the most cited source in constitutional adjudication. The extreme frequency with which the justices cite, or ground their opinions in, precedent establishes precedent as a, if not the, principal mode of constitutional argumentation.97 Fourth, some prominent legal scholars treat “elaborated precedent” as effectively displacing the constitutional (p.66) text.98 In the next section, I examine some theories grounded in a strong view of precedent and their limitations.
2.2 The Strong View of Precedent in Legal Scholarship
Several prominent legal scholars propose theories that make uprooting certain precedents more difficult. For instance, Bruce Ackerman advances a provocative theory of constitutional moments.99 On his view, constitutional moments as rare instances in which the American people bypass the formal amendment process to work with national political leaders to produce enduring constitutional changes. Ackerman identifies three such moments—the Founding, Reconstruction, and the New Deal—which did not conform to Article V's formal rules for constitutional amendments. To Ackerman, these moments are important precedents that judges and justices must not only respect, but are obliged to explicate “long after the reformers [who framed them] have left the scene of political struggle.”100 He understands “[t]hese precedents are unconventional, but they provide a key to the American success in sustaining self‐government for two centuries.”101
Ronald Dworkin has a judge‐centered theory of precedent. For him, the critical question is what judges regard as the law in hard cases. In hard cases (those in which legal materials do not present clear or determinate answers), judges forge concrete, if contestable, understandings of what the law requires.102 In doing this, they strive to find the moral principle that provides the best possible explanation of earlier cases.
Dworkin analogizes judging to writing a “chain novel” in which someone is asked to write the final chapter of an unfinished work of fiction.103 Far from being an unconstrained choice about how to complete the narrative, writers are constrained by many factors, including character development and the writer's depiction of the social world. Dworkin maintains it is implausible for the writer of a chain novel or a judge to credibly claim that she has discretion to write whatever she pleases.104
Unlike Ackerman or Dworkin, David Strauss explains the Court's doctrine determined by what he calls “common law constitutional interpretation.” He believes constitutional meaning derives not “from some authoritative source,” but rather from “understandings that evolve over time,” especially as reXected in precedents.105
Like Strauss, Kathleen Sullivan eschews any grand theory of constitutional law. Sullivan closely reads cases to clarify constitutional doctrine. She (p.67) demonstrates in one article how it was possible to understand the Court's most recent decisions as reXecting sharp differences among the justices over formulating decisions as rules (bright‐line, inXexible principles) or as standards (multifactored criteria).106 She later rejects characterizing the Republican appointees on the Rehnquist Court in simplistic ideological terms.107 She shows that, instead, so‐called conservatives on the Rehnquist Court divide over the weight and propriety of considering nine different factors, or preferences, including originalism, textualism, judicial restrain and deference to legislatures, libertarianism and deregulation, states' rights, tradition, judicial precedent, free market capitalism, and law and order.
None of these scholars proposes adopting formal rules as a way to entrench precedents more deeply into constitutional law. For example, the justices could adopt a rule forbidding them to overrule constitutional precedents unless a majority of justices in the overruling case is larger than the majority in the case(s) being overruled. This structural change would surely lead to fewer express overrulings. But it might encourage more subtle, less candid eviscerations of precedent. More importantly, the justices would never adopt such a rule108 because they are strongly committed to allowing each other the freedom to decide the level of deference each will give to precedent.109
Without formal rules for construing precedent,110 proponents of a strong view of precedent must depend on the force of their reasoning to persuade others. Yet, the absence of formal rules for constructing precedents leaves justices, particularly in hard cases, free to interpret prior decisions in accordance with other factors.111
The biggest problem for the strong view of precedent is, however, posed by the empirical data amassed by social scientists (and some legal scholars) suggesting that judicial precedents do not strongly constrain courts. The data merit close inspection because of their widespread acceptance among social scientists and devastating implications.
2.3 The Empirical Challenge to the Strong View of Precedent
Social scientists who study Supreme Court precedent split roughly into five camps: (1) strong attitudinalists; (2) strong rational choice theorists; (3) empiricists synthesizing rational choice and attitudinal models; (4) postpositivists, including historical institutionalists; and (5) skeptics who are not convinced by the dominant models. In this section, I examine (p.68) the research done by scholars in the first three camps because they pose the most serious problems for the strong view of precedent. In the next chapter I examine the empirical work done by those in the other groups because they question or reject the claims of scholars in the first three groups and support a more nuanced perspective than the weak or strong view of precedent.
3. Rational Choice, Attitudinal, and Mixed Models of Precedent
The dominant social science models of precedent are the attitudinal model and rational choice theory. Those who favor, or combine, these models have long been conducting extensive empirical tests of precedent's inXuence on judicial behavior. These scholars suggest that their testing reveals that precedent does not constrain the Court. They claim that the most meaningful predictors—and constraints—on what justices decide are factors external to the law, such as the justices' personal or policy preferences, and not factors internal to the law, including the Constitution or precedent. Rational choice theorists and attitudinalists diverge over how and which external factors drive judicial behavior. While there are variants of the rational choice and attitudinal models (and their combinations), they are subject to the same problems which I suggest undermine the two basic models.
Harold Spaeth is the leading and strongest attitudinalist. Building on social psychology research and theory, Spaeth initially constructed the attitudinal model, which he later refined with the help of Jeffrey Segal. In 1993112 Spaeth and Segal demonstrated the empirical support for the attitudinal model, and in 1999 they published extensive empirical findings demonstrating that precedent did not constrain the justices from voting their personal policy preferences.113 In 2002 they revised their thesis to incorporate strategic behavior among the justices and to take into account a more sophisticated understanding of law.
In their revised thesis, Spaeth and Segal identify the legal model as their primary target. They define the legal model as “the belief that, in one form or another, the decisions of the Court are substantially inXuenced by the facts of the case in light of the plain meaning of statutes and the Constitution, the intent of the framers, and/or precedent.”114 They identify Dworkin as a principal proponent of the legal model because he believes (p.69) that “stare decisis plays a vital role in judicial decision‐making”115 and that the quest to fit past cases and “hard” ones leads judges to “eliminate interpretations that some judges would otherwise prefer, so that the brute facts of legal history will in this way limit the role any judge's personal concoctions can play in his decisions.”116 Spaeth and Segal were not persuaded. They claimed Dworkin and the legal model failed to meet the exacting standards of scientific research, under which the “[legal] model must be able to state a priori the potential conditions that, if observed, would refute the model.”117 Because the legal model posits no such conditions, it is irrefutable.
Spaeth and Segal consider
the best evidence for the inXuence of precedent must come from [justices who dissented] to … the majority opinion under question, for we know that these justices disagree with the precedent. If the precedent established in the case inXuences them, that inXuence should be felt in that case's progeny, through their votes and opinion writing. Thus, determining the inXuence of precedent requires examining the extent to which justices who disagree with a precedent move toward that position in subsequent cases.118
Segal and Spaeth searched 2418 votes and cases for evidence of the “gravitational force” of precedent claimed by Dworkin,119 the “ ‘respect for precedent’ ” Ronald Kahn suggests justices exhibit,120 or the validity of C. Herman Pritchett's statement that “ ‘[j]udges make choices, but they are not the ‘free choices of congressmen.’ ”121 In categorizing attitudes towards precedent, Spaeth and Segal treated justices who supported challenged precedents as “precedentialists” (ranging from strong to weak) and justices who did not as “preferentialists” (ranging from strong to weak).122 They further broke down cases into “ordinary” and “landmark” cases as rated by Congressional Quarterly's Guide to the U.S. Supreme Court. Their data showed that “[t]he justices are rarely inXuenced by stare decisis.”ffi It demonstrated “beyond doubt that the modern Courts, heavily criticized for their activism, did not invent or even perfect preferential behavior; it has been with us since Washington packed the Court with Federalists.”124 Segal and Spaeth suggested the few precedentialist acts are irrelevant because they are “more likely to be found in cases of the lowest salience: ordinary cases compared with landmark cases and, among ordinary cases, statutory (p.70) cases over constitutional cases and modern economic cases over modern civil liberties cases. The inXuence of precedent appears to be quite minor, but it does not appear to be completely idiosyncratic.”125 They found “not one justice of the Rehnquist Court exercised deference to precedent by voting to uphold both conservative and liberal precedents.”126
In contrast to the strong attitudinal model, rational choice theorists—sometimes called positive political theorists127—argue that precedent is principally instrumental as a means to an end. They suggest justices employ various strategies to manipulate precedents to implement their preferences. These preferences include (but are not limited to) preserving the Court's reputation and dominance in interpreting the Constitution. Attitudinalists dispute the extent (and significance) of the manipulation,128 whereas rational choice theorists suggest justices are not completely free to vote their policy preferences, but rather operate in a specific institutional environment that sometimes forces them to take various factors into consideration, such as the norm of stare decisis, when formulating strategies to implement their objectives.
Spaeth and Segal suggest that a major problem with rational choice theory is its failure to develop models that satisfy equilibrium theory, which posits that in competitive circumstances parties tend to move toward stable outcomes. This theory provides the means by which to measure the parties' achievements of their respective strategies and goals:
Equilibria … are crucial to most rational choice theorists. They represent “a prediction, for a specified circumstance, about the choices of people and the corresponding outcomes. This prediction generally takes the form of ‘if the institutional context of a choice is … and if people's preferences are … then the only choices and outcomes that can endure are …,”129
Thus, equilibrium theory “provid[es] necessary and sufficient conditions for choices to occur.”130 Spaeth and Segal acknowledge other theorists—particularly two leading rational choice theorists, Lee Epstein and Jack Knight—who “dispute the centrality of equilibrium analysis for rational choice models, labeling the positions taken by each side of the debate a play ‘to its competitive advantage.’ ”131 Nevertheless, Segal and Spaeth consider equilibrium theory as the “most powerful and important advantage that rational choice theory has over other theories” because it provides the means by which to construct falsifiable models of strategic behavior (p.71) by “demonstrat[ing] that interactions among the justices constitute a best response to a best response, or alternative equilibrium solutions.”132 Rational choice theorists mistakenly infer strategies from the outcomes achieved in particular cases, even though this is circular; and they “allow [justices to pursue] any goals whatsoever,” making every objective achieved rational.133
The clash between the attitudinal model and Epstein and Knight's work is most evident in Segal and Spaeth's discussion of the extent to which precedent genuinely constrains the justices from voting their policy preferences. In 1996 Epstein and Knight argued that “precedent can serve as a constraint on justices acting on their personal policy preferences.”134 Although judges and justices might prefer to ignore precedent in favor of their preferred policies, they are constrained by the utility of precedent in fostering social stability and judicial legitimacy. Others might react negatively if the Court violated precedent. In support of the significance of precedent in judicial decision making, they point to the ubiquity of citations of precedent in judges' published opinions, litigants' arguments, and justices' private discussions. Spaeth and Segal responded that ubiquity was not inXuence and the evidence actually demonstrated that the justices felt little social pressure to adhere to precedents.135 Spaeth and Segal's quarrel is less with Epstein and Knight's empirical methods than with the implications of their data.
Beyond the strongest attitudinalists and rational choice theorists are scholars who combine the dominant models, including rational choice theorists who agree with attitudinalists about the centrality of attitudes to judicial decision making. For instance, one variant posits that justices' votes in some areas of constitutional law are predictable according to a single “ideal point” symbolizing, or summarizing, their respective preferences.136
4. The Limits of Strong Attitudinal and Rational Choice Theories
Many if not most legal scholars ignore the dominant social science models of the Court or argue judging cannot be quantified and consider empirical analysis untrustworthy because it can be easily manipulated. The impasse between legal scholars and many social scientists does not bode well for understanding precedent. It allows perpetuation of misconceptions about (p.72) precedent, law, and the relevance of the empirical analysis of judging. In this section I examine several problems with the empirical analyses of attitudinalists and rational choice theorists. These problems underscore the need for more refined data analysis and theories of precedent.
First, attitudinalists and rational choice theorists attack a nonexistent foe. Legal scholars do not propose a scientific model of judging and insist law is not a science. This
refusal is … common among social scientists. In fact, legal scholarship frequently pursues doctrinal, interpretive, and normative purposes rather than empirical ones. Legal scholars often are just playing a different game than the empiricists play, which means that no amount of insistence on the empiricists' rules can indict legal scholarship—any more than strict adherence to the rules of baseball supports an indictment of cricket.137
Other fields, such as presidential studies, paleontology, and anthropology, employ similar methods. Attitudinalists' and rational choice theorists' “empirical methodology blinds them to legal scholarship's internal perspective” or legal scholars' efforts to explain the process by which judges and justices “interpret” the law, including precedent.138 The internal perspective includes analytical methods for assessing the coherence of legal reasoning and different constructions of the Constitution. Many attitudinalists and rational choice theorists too quickly dismiss the significance lawyers attach to interpretive methodologies. Justices' interpretive methodologies are endemic, not exogenous, to the adjudicative process, because they derive from traditional sources of constitutional law. Moreover, attitudinalists and rational choice theorists do not appreciate how judges critique alternative interpretive approaches based on their internal coherence and achievement of their stated objectives. Thus Dworkin's theory of law should be evaluated on how well it makes sense on its own terms and as compared to other positive accounts of what justices do.139
Some scholars may respond that judicial ideologies are not law, but rather personal preferences. This response reXects, however, a basic misunderstanding of law. Law is not just what legislatures make, and not all laws have the same constraining force. Judicial interpretations of legal materials are law, and they exert legal force. The particular perspectives which many social scientists claim are constraining the justices are their legal interpretations. The fact that the justices assert different legal interpretations (p.73) does not make them any less law. The Constitution—the supreme law in the land—authorizes these interpretations by empowering the Court to decide cases, by requiring justices to take oaths prior to performing their constitutional duties, and by authorizing their decisions to stand as constitutional law unless or until they are displaced through formal constitutional amendments. The Constitution establishes multiple processes for filtering these interpretations out, for implementing them, and for altering them. One such process is the judicial system. It consists of a hierarchical decision‐making process for courts, including internal rules for legal argumentation. The Constitution also authorizes a process that is external to the courts (but with possible ramifications within them) for testing and correcting their interpretations of the Constitution.
Second, many attitudinalists and rational choice theorists do not recognize the possibility of good faith differences of opinion over interpretation of the law. For example, variations in judicial votes might not be evidence of hypocrisy, as claimed by Spaeth and Segal. Instead, “what the two call ‘subjective preferences’ may be nothing more than honest attempts to apply consistent interpretive philosophy to the facts.”140 Any correlation between justices' decisions and (possible) political preferences is designated as a policy choice rather than a good faith attempt to construe the law. Many attitudinalists (and some rational choice theorists) go further to dismiss the significance of the fact that the Court decides hard cases. “Virtually none of the disputes that reach the Court are easy cases. Most of them concern issues for which sources of legal authority—constitutional text, original understanding, evolving tradition, precedent—do not yield determinate answers.”141 The Court's docket consists of cases in which no single source points to a simple or obvious answer. More importantly, precedent is not an isolated issue or subject in the cases decided by the Court. To the contrary, it arises in relation to the possible relevance of other possible sources of constitutional meaning. Consequently the justices are usually required to coordinate sources in deciding cases142—something that most attitudinalist and rational choice theorists ignore.143
In making judgments about coordinating sources, justices' ideological preferences or commitments may come into play. Yet, these preferences or commitments are not the same as partisan policy preferences. They purport to be principled approaches to deciding cases.144 They can be dismissed as unprincipled only if they fail to be grounded in coherent constructions of legal materials and to comport with normatively superior (p.74) principles, which attitudinalists and rational choice theorists generally fail to propose.
Third, many attitudinalists and rational choice theorists minimize the extent to which legal variables may explain constitutional cases. For instance, Spaeth and Segal exclude unanimous opinions from their data set on the justices' fidelity to precedent because they lack the friction that presumably provides the impetus for justices to express their respective policy preferences.145 Unanimity is difficult to square, however, with a critique of the legal model that suggests Supreme Court justices never, or almost never, make decisions based on legal variables. Even worse for the critique of the legal model, there are numerous cases involving salient issues on which the justices transcend their ideological differences to reach agreement about the law. Many of these cases are unanimous,146 while others are nearly unanimous. For instance, a six‐member majority of the Supreme Court upheld Virginia's statutory ban on cross burning.147 The six justices in the majority were Chief Justice Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Clarence Thomas, and Stephen Breyer. Justices Souter, Ginsburg, and Kennedy dissented. These are not easily predictable or explicable coalitions. None of the justices sympathized with cross burning. Instead, they divided into coalitions based on their interpretations of the Court's doctrine on symbolic conduct. Their positions are explainable on the bases of legal variables.
Fourth, attitudinalists' supposition that justices should follow all the precedents to which they dissented is dubious. There is no basis for believing justices should rigidly follow every precedent to which they dissented. The same obligation that lower court judges have to obey Supreme Court precedent does not extend to the Court's dissenters; they are not considered subordinate in any way to their colleagues and thus have no obligation to accept their colleagues' positions. There is, in other words, no norm that obligates justices to defer to precedents to which they dissented. The legal model allows dissent.
Fifth, the dominant social science models assume, but do not prove, that the primary interest which justices are interested in maximizing is inXuence over policymaking. Supreme Court justices have many possible interests they might wish to maximize. It is true that the conventional assumption of economics that individuals seek to maximize wealth is largely inapplicable to federal judges, whose salaries are fixed and tenure is secure.148 While justices cannot get better salaries by improving their (p.75) performances, they may try to maximize other interests, including preserving leisure time, desire for prestige, promoting the public interest, avoiding reversal, or enhancing reputation.
“[P]ersonal dislike of a lawyer or litigant, gratitude to the appointing authorities, desire for advancement, irritation with or even a desire to undermine a judicial colleague or subordinate, willingness to trade votes, desire to be on good terms with colleagues, not wanting to disagree with people one likes or respects, fear for personal safety, fear of ridicule, reluctance to offend one's spouse or close friends, and racial or class solidarity” may also represent interests justices maximize.149 Further, justices might seek to maximize their sense of duty, for example, they might seek to make the best decision in light of the relevant legal materials. These different interests suggest that the search for a single, universal, invariable maximand, such as inXuencing policy, is futile.
Sixth, the dominant social science models cannot explain constitutional change in the short or long term.150 The attitudinal model is based in part on the presumption that individual justices have fixed ideological preferences at the start of their respective tenures. Fixed preferences are appealing to social scientists because they can be easily measured. If, however, they shift, there would be no tangible measure of a justice's ideology against which to assess her subsequent decisions. Unfortunately, there are no data confirming that justices generally have firmly fixed preferences at the outset of, much less throughout, their respective appointments. The search for these firmly fixed preferences leads many social scientists around in circles.
This problem is evident in Spaeth and Segal's treatment of John Marshall. They accept the misconception of Marshall as dominating his Court intellectually to further the Federalist party's policy preferences.151 They fail to acknowledge, much less appreciate the fact that nearly all of Marshall's constitutional opinions were delivered for a Court with a hand‐picked Jeffersonian majority. Most of the justices with whom Marshall served were chosen because of their antipathy towards Federalist policies and sympathy towards the Jeffersonian constitutional vision.152 Thus the Court, with Marshall as Chief Justice, actually repudiated Federalist preferences that the Constitution be construed rigorously, with any ambiguities in its language resolved according to the “rule of choosing the meaning that best comported with the objects, or purposes, of the Constitution as stated in the Preamble”;153 that our Constitution is not one of enumerated powers but rather invests the Congress with “a general lawmaking (p.76) authority for all the objects of the government that the Preamble of the Constitution states,”154 that the “United States formed a single nation as to ‘all commercial regulations’ ”;155 and that the common law was part of the law of the United States and thus allowed for Supreme Court supremacy over the state courts with respect to all questions of state law and common law.156 The attitudinal model cannot explain why Marshall abdicated these strongly held Federalist views as chief justice.
Nor can the dominant models explain why the ideological categories to which their proponents assign justices shift over time. Spaeth and Segal, for instance, gloss over shifts in the meanings of these categories, merely defining them on the extent to which they favor or support policies which are popularly viewed as liberal or conservative.157 If, however, the meanings of these categories shift, the model cannot explain why. The model cannot account for, and is in fact undermined by, ideological drift, which is the phenomenon by which a view generally associated with one political faction is over time appropriated by or becomes associated with a different one.158 Thus aggressive judicial review might in one period appear to be liberal, while in another it might appear to be conservative. The fact that such alterations occur is beyond doubt, even assuming particular justices' attitudes are fixed.
For instance, Frankfurter was among the strongest advocates for judicial restraint during his 22 years on the Court. Praised by liberals for his staunch defense of judicial restraint in evaluating progressive economic regulations through his first decade on the Court, Frankfurter was upset to find that in the late 1940s and early 1950s liberals were denouncing him.
Now, when he advocated judicial restraint, he was attacked by those very same liberals [who had once praised him]. In his earlier years, pillars of the legal community like Henry Stimson, Emory Buckner, and Charles Burlingham praised him. Now, they were either dead or silent. [In] the Truman years, there was little White House contact. Frankfurter had never believed he was “the single most inXuential man” in Washington, but sometimes he had enjoyed the notoriety. Now there was no more notoriety; he was only one of nine, and one under increasing criticism from those once his friends.159
In the years that followed, Frankfurter's status as a liberal increasingly declined. Coincidentally, he shifted from a weak view of precedent before (p.77) his appointment to the Court to acknowledging once he was on the Court the tendency to “encrust” the Constitution with precedents and “thereafter to consider merely what has been judicially said.”160
Moreover, the dominant models fail to fully explain stability in constitutional doctrine. The strongest attitudinalists insist that justices will not vote against the interests of governing political coalitions, but sometimes these coalitions do not get the change they want. The strongest attitudinalists cannot account for rather frequent periods in which new justices have failed to alter constitutional doctrine to the extent preferred by the political forces responsible for their appointments.161 Indeed, there are many areas in which judicial closure is achieved, even though many justices might personally disagree with the position(s) reached.162 A striking example is the Court's 7–2 decision, in an opinion by Chief Justice Rehnquist, reaffirming Miranda v. Arizona163 in Dickerson v. United States,164 in spite of conservatives' long‐standing efforts to dismantle Miranda.
Lastly, many attitudinalists (and some rational choice theorists) ignore the phenomenon of institutional path dependence. A decision has path dependency if it compels or forces judges to forego or accept other choices.165 While attitudinalists claim precedents do not generate much if any path dependency in constitutional law,
[i]nstitutions are relatively persistent, and thus carry forward in time past political decisions and mediate the effects of new political ones. The creation of institutions closes off options by making it more costly to reverse course, by differentially distributing resources, and by tying interests and identities to the status quo. [Moreover,] the persistence of institutions across time can foster political crises and change as they enter radically changed social environments or abrade discordant institutions.166
Many attitudinalists and rational choice theorists discount the link among constitutional design, doctrinal stability, and legal change.
The difficulties which I have found in the dominant social science models of precedent are not merely knit‐picking. They reveal the need for a theory of precedent that better explains the Court's handling of precedent. In the next chapter I propose a theory that synthesizes conventional legal analysis and social science research to explain the construction and evolution of precedent. (p.78)
(1.) See Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 Vand. L. Rev. 647 (1999); see also Thomas R. Lee & Lance S. Lehnhof, The Anastasoff Case and the Judicial Power to ‘Unpublish’ Opinions, 77 Notre Dame L. Rev. 135 (2001).
(2.) Lee, supra note 1, at 718.
(3.) Lee & Lehnof, supra note 1, at 155 (citation omitted).
(4.) Lee, supra note 1, at 661.
(5.) Lee, supra note 1, at 718–19 (“the notion of a diminished standard of deference to constitutional precedent was generally rejected by founding‐era commentators, and drew only isolated support in opinions in the Taney era. Under the prevailing view in the founding era and through the Marshall and Taney years, exceptions to the rule of stare decisis might condone the rejection of constitutional precedent, but any exceptions were applied across the board, irrespective of the constitutional nature of the decision. The first majority opinion to suggest otherwise appears to be Justice Strong's opinion for the Court in the Legal Tender Cases”).
(6.) See James H. Fowler & Sangick Jeon, The Authority of Supreme Court Precedent: A Network Analysis, June 29, 2005. These authors note that “hardly any 18th century cases cited at least one precedent, but starting in about 1800 there is a slow and steady increase in the practice. This increase levels off by 1900, when about 90% of the cases are citing precedent. Thus, justices were clearly in the habit of connecting their decisions to previous rulings by the turn of the century.” Id. at 8–9. See also Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 580 (2001).
(7.) Lee & Lehnof, supra note 1, at 171. See also Federalist No. 78 (Alexander Hamilton) (“[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them”).
(8.) See generally United States v. Arredondo, 31 U.S. (6 Pet.) 691, 710, 8 L. Ed. 547 (1832) (different circumstances from Foster & Elam v. Neilson, 27 U.S. (2 Pet.) 253, 7 L. Ed. 415 (1829)); Sullivan v. Burnett, 105 U.S. (15 Otto) 334, 341, 26 L. Ed. 1124 (1881) (not governed by McCreery's Lessee v. Somerville, 22 U.S. 354 (9 Wheat.) 354, 6 L. Ed. 109 (1824)); Meath v. Phillips County, 108 U.S. 553, 555, 2 S. Ct. 869, 870, 27 L. Ed. 819 (1883) (distinguishing County of Cass v. Johnston, 95 U.S. (5 Otto) 360, 24 L. Ed. 416 (1877) and Davenport v. Dodge Co., 105 U.S. (15 Otto) 237, 26 L. Ed. 1018 (1881)); Board of Com'rs of Chaffee County v. Potter, 142 U.S. 355, 366, 12 S. Ct. 216, 220, 35 L. Ed. 1040 (1892) (distinguishing Dixon Co. v. Field, 111 U.S. 83, 4 Sup. Ct. Rep. 315 (1884) and Lake Co. v. Graham, 130 U.S. 674, 9 Sup. Ct. Rep. 654 (1889)); Warner v. Baltimore & O.R. Co., 168 U.S. 339, 346, 18 S. Ct. 68, 71, 42 L. Ed. 491 (1897) (distinguishing Elliot v. Railway Co., 150 U.S. 245, 14 Sup. Ct. 85 (1893).
(9.) Lee, supra note 1, at 727.
(10.) Legal Tender Cases, 79 U.S. (12 Wall.) 457, 553–54, 20 L. Ed. 287 (1871); Washington University v. Rouse, 75 U.S. (8 Wall.) 439, 444, 19 L. Ed. 498 (1869); License Cases, 46 U.S. (5 How.) 504, 612, 12 L. Ed. 256 (1847) (Daniel, J., concurring).
(11.) Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 62 (5th ed., Little, Brown 1883) (“Precedents, therefore, become important, and counsel are allowed and expected to call the attention of the court to them, not as concluding controversies, but as guides to the judicial mind”); id. .at 65 (“It will of course sometimes happen that a court will find a former decision so unfounded in law, so unreasonable in its deductions, or so mischievous in its consequences, as to feel compelled to disregard it”).
(12.) D. H. Chamberlain, The Doctrine of Stare Decisis As Applied to Decision of Constitutional Questions, 3 Harv. L. Rev. 125, 131 (1889).
(13.) Larry D. Kramer, The Supreme Court 2000 Term Foreword: We the Court, 115 Harv. L. Rev. 4, 74 (2001). Kramer expanded this article into a book, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford Univ. Press 2004).
(14.) Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 n.*, 1 L. Ed. 436 (1792) (declaring, “if we can be convinced this opinion is a wrong one, we shall not hesitate to act accordingly, being so far from the weakness of supposing that there is any reproach in having committed an error, to which the greatest and best men are sometimes liable, as we should be, from so low a sense of duty, as we think it would not be the highest and most deserved reproach that could be bestowed on any men (much more on judges) that they were capable, from any motive, of persevering against conviction, in apparently maintaining an opinion, which they really thought to be erroneous”).
(15.) U.S. (2 Dall.) 419, 1 L. Ed. 440 (1793).
(16.) Charles Garner Geyh & Emily Field Van Tassel, The Independence of the Judicial Branch in the New Republic, 74 Chi.‐Kent L. Rev. 31 (1999) (concluding (p.267) the Framers had not considered judicial independence at any length, but that during the battles over the judiciary of 1801 and 1802, it was argued that the judiciary was not independent.)
(17.) License Cases, 48 U.S. (7 How.) 283, 12 L. Ed. 702 (1849); Genesee Chief, 53 U.S. (12 How.) 443, 458–59, 13 L. Ed. 1058 (1851); Legal Tender Cases, 79 U.S. (12 Wall.) 457, 554, 20 L. Ed. 287 (1870).
(18.) Legal Tender Cases, 79 U.S. (12 Wall.) 457, 554, 20 L. Ed. 287 (1871).
(19.) Briscoe v. Commonwealth's Bank, 33 U.S. (8 Pet.) 118, 122, 33 U.S. 120, 8 L. Ed. 887 (1834) (“The practice of this court is, not (except in cases of absolute necessity) to deliver any judgment in cases where constitutional questions are involved, unless four judges concur in opinion, thus making the decision that of a majority of the whole court”).
(20.) Legal Tender Cases, 79 U.S. (12 Wall.) 457, 569, 20 L. Ed. 287 (1871).
(21.) Id. at 634 (Though Chief Justice Chase refers to the Court's overturning of its prior decision as “unprecedented,” the context in which he made this statement suggests he was referring to an overruling of a precedent due to change in the composition of the Court.).
(22.) Edward A. Purcell, Jr., Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts, 24 Law & Soc. Inquiry 679, 725 (1999).
(23.) William O. Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949).
(24.) Id. at 737.
(25.) Id. at 750.
(26.) Id. at 754.
(27.) Glidden Company v. Zdanok, 370 U.S. 530, 592, 82 S. Ct. 1459, 1495 (1962) (Douglas, J., dissenting).
(28.) United Gas Improvement Co. v. Continental Oil Co., 381 U.S. 392, 406, 85 S. Ct. 1517, 1525 (1965) (Douglas, J., dissenting).
(29.) See Columbia Broadcasting System, Inc. v. Democratic Nat'l Committee, 412 U.S. 94, 154, 93 S. Ct. 2080, 2112, 36 L. Ed. 2d 772, 813 (1972) (Douglas, J., concurring); Furman v. Georgia, 408 U.S. 238, 248 n.1, 92 S. Ct. 2726, 2731 n.1, 33 L. Ed. 2d 346, 355 n.1 (1972) (Douglas, J., concurring); McNeal v. Culver, 356 U.S. 109, 119, 81 S. Ct. 413, 419, 5 L. Ed. 2d 445, 452 (1961) (Douglas, J., concurring); Flood v. Kuhn, 407 U.S. 258, 286, 92 S. Ct. 2099, 2114, 32 L. Ed. 2d 728, 746 (1972) (Douglas, J., dissenting).
(30.) Hugo L. Black, A Constitutional Faith 14 (Knopf 1968).
(31.) Connecticut General Life Insurance Co. v. Johnson, 303 U.S. 77, 85, 58 S. Ct. 436, 440, 82 L. Ed. 673 (1938) (Black, J., dissenting).
(32.) See Maurice Kelman, The Forked Path of Dissent, 1985 Sup. Ct. Rev. 227, 251.
(33.) Phillip B. Kurland, Politics, the Constitution, and the Warren Court, 91 (Univ. of Chicago Press 1970).
(34.) Id. at xx.
(35.) See, e.g., Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 1135 S. Ct. 2141, 2150 (1993) (Scalia, J., concurring) (establishment clause); Lee v. (p.268) Weisman, 112 S. Ct. 2649, 2685 (1992) (Scalia, J., dissenting) (establishment clause); Mistretta v. United States, 488 U.S. 361, 417 (1989) (Scalia, J., dissenting) (separation of powers); Morrison v. Olson, 487 U.S. 654, 710–12 (1988) (Scalia, J., dissenting) (separation of powers); American Trucking Ass'ns v. Scheiner, 483 U.S. 266, 303–6 (1987) (Scalia, J., dissenting) (dormant commerce clause); Barnes v. Glen Theatre, Inc., 111 S. Ct. 2456, 2463 (1991) (Scalia, J., concurring) (nude dancing); Pope v. Illinois, 481 U.S. 497, 505 (1987) (Scalia, J., concurring) (obscenity); California v. Acevedo, 111 S. Ct. 1982, 1992 (1991) (Scalia, J., concurring) (criminal procedure); Powers v. Ohio, 499 U.S. 400, 417 (1991) (Scalia, J., dissenting) (criminal procedure).
(36.) South Carolina v. Gathers, 490 U.S. 805, 825, 109 S. Ct. 2207, 104 L. Ed. 2d 876 (1989) (Scalia, J., dissenting) (“I agree with Justice Douglas: ‘A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.’ Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949)”).
(37.) U.S. 677 (2005).
(38.) Id. at 690.
(40.) Richard A. Posner, The Problems of Jurisprudence 94 (Harvard Univ. Press 1990); Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 25–26 (1995).
(41.) See, e.g., Hearings Before the Committee on the Judiciary United States Senate on the Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States, Part I, 523–24, quoted in Battle for Justice: How the Bork Nomination Shook America, Ethan Bonner 260 (W. W. Norton 1989) (“I don't think that in the field of constitutional law precedent is all that important … If you become convinced that a prior court has misread the Constitution, I think it's your duty to go back and correct it.… I don't think precedent is all that important. I think the importance is what the framers were driving at, and to go back to that”).
(42.) See, e.g., Michael Perry, The Constitution, the Courts, and Human Rights 64–67 (Yale Univ. Press 1982); Henry Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 723–24 (1988).
(43.) Robert Bork, The Tempting of America: The Political Seduction of the Law 156–69 (Free Press 1989).
(44.) Raoul Berger, Original Intent and Boris Bittker, 66 Ind. L.J. 723, 747 (1991) (citation omitted).
(45.) Id. at 754.
(46.) Id. at 725.
(47.) See, e.g., Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey? 109 Yale L.J. 1535, 1543–44 (2000); John Harrison, The Power of Congress Over the Rules of (p.269) Precedent, 50 Duke L.J. 503 (2000); Gary Lawson, The Constitutional Case against Precedent, 17 Harv. J.L. & Pub. Pol'y 23 (1994). See also Steven Calabresi, The Tradition of the Written Constitution: Text, Precedent, and Burke, 57 Alabama L. Rev. 635 (2006).
(48.) Kelman, Forked Path, at 251.
(49.) 356 U.S. 165, 78 S. Ct. 632, 2 L. Ed. 2d 672 (1958).
(50.) Id. at 195.
(51.) Douglas, too, sometimes recognized precedent as having some weight, albeit tiny, in constitutional adjudication. Douglas, at 736 (“Stare decisis provides some moorings so that men may trade and arrange their affairs with confidence. Stare decisis serves to take the capricious element out of law and to give stability to a society”).
(52.) Felix Frankfurter, The Present Approach to Constitutional Decision on the Bill of Rights, 28 Harv. L. Rev. 790, 791 (1915).
(53.) Felix Frankfurter & Thomas Corcoran, Petty Federal Offenses and Trial by Jury, 39 Harv. L. Rev. 917, 922 (1926).
(54.) Letter from Frankfurter to Stone (Dec. 28, 1943), quoted in Alpheus T. Mason, Harlan Fiske Stone 610 (1956).
(55.) United States v. Rabinowitz, 339 U.S. 56, 86, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J., concurring).
(56.) Graves v. New York, 306 U.S. 466, 487, 59 S. Ct. 595, 83 L. Ed. 927 (1939) (Frankfurter, J., concurring).
(57.) Green v. United States, 356 U.S. 165, n.2, 78 S. Ct. 632, 2 L. Ed. 2d 672 (1958) (Frankfurter, J., concurring).
(58.) Id. at 193.
(59.) Casey, at 944 (Rehnquist, C.J, dissenting).
(60.) See Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U.S. 616, 673, 107 S. Ct. 1442, 1473, 94 L. Ed. 2d 615 (1987) (Scalia, J., dissenting); South Carolina v. Gathers, 490 U.S. 805, 823, 109 S. Ct. 2207, 2217, 104 L. Ed. 2d 876 (1989) (Scalia, J., dissenting); Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 496, 107 S. Ct. 2941, 2958, 97 L. Ed. 2d 389 (1987) (Scalia, J., concurring in part and in the judgment); Healy v. Beer Institute, Inc., 491 U.S. 324, 344, 109 S. Ct. 2491, 2504, 105 L. Ed. 2d 275 (1989) (Scalia, J., concurring in part and in the judgment); Webster v. Reproductive Health Services, 492 U.S. 490, 532, 109 S. Ct. 3040, 3064, 106 L. Ed. 2d 410 (1989) (Scalia, J., concurring in part and in the judgment).
(61.) U.S. v. International Business Machines Corp., 517 U.S. 843, 856, 116 S. Ct. 1793, 1801, 135 L. Ed. 2d 124, (1996) (opinion written by Thomas).
(62.) Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 138–39 (Princeton Univ. Press 1997).
(63.) Id. at 139.
(64.) See, e.g., U.S. v. Dixon, 509 U.S. 688, 704, 113 S. Ct. 2849, 2860, 125 L. Ed. 2d 556 (1993) (Scalia, J., majority) (arguing that Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), should be overruled because it is (p.270) “wholly inconsistent with earlier Supreme Court precedent and with the clear common‐law understanding of double jeopardy”); Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 751, 114 S. Ct. 2481, 2515, 129 L. Ed. 2d 546 (1994) (Scalia, J., dissenting) (arguing that the Lemon test, in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), should be abandoned because it has become “utterly meaningless”); Allied‐Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 285, 115 S. Ct. 834, 845, 130 L. Ed. 2d 753 (1995) (Scalia, J., dissenting) (arguing Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79 L. Ed. 2d 1 (1984), should be overruled because, in addition to being wrongly decided, overruling would not impair any reliance interests); Hubbard v. U.S., 514 U.S. 695, 716, 115 S. Ct. 1754, 1765, 131 L. Ed. 2d 779 (1995) (Scalia, J., concurring in part and concurring in the judgment) (arguing that United States v. Bramblett, 348 U.S. 503, 75 S. Ct. 504, 99 L. Ed. 594 (1955), should be overruled because it has “unacceptable consequences”); U.S. v. Gaudin, 515 U.S. 506, 520, 115 S. Ct. 2310, 2318, 132 L. Ed. 2d 444, (1995) (Scalia, J., majority) (arguing that the reasoning supporting Sinclair v. United States, 279 U.S. 263, 49 S. Ct. 268, 73 L. Ed. 692 (1929), had been repudiated by subsequent cases); College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 683, 119 S. Ct. 2219, 2229, 144 L. Ed. 2d 605, (1999) (arguing that Parden v. Terminal R. of Ala. Docks Dept., 377 U.S. 184, 84 S. Ct. 1207, 12 L. Ed. 2d 233 (1964), was inconsistent with other privilege doctrine and had been effectively overruled by previous cases); Dickerson v. U.S., 530 U.S. 428, 448, 120 S. Ct. 2326, 2339, 147 L. Ed. 2d 405 (2000) (Scalia, J., dissenting) (arguing that Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), should be overruled because it is “objectionable for innumerable reasons, not least the fact that cases spanning more than 70 years had rejected its core premise”); Stenberg v. Carhart, 530 U.S. 914, 955, 120 S. Ct. 2597, 2622, 147 L. Ed. 2d 743 (2000) (Scalia, J., dissenting) (arguing Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), should be overruled because it was “hopelessly unworkable in practice”).
(65.) Richard A. Posner, In Memoriam: William J. Brennan, Jr., 111 Harv. L. Rev. 9, 11 (1997).
(66.) William J. Brennan, In Defense of Dissents, 37 Hastings L.J. 427, 435–37 (1986).
(67.) Id. at 432.
(68.) U.S. Const. art. III, § 2, cl. 1.
(69.) Fallon, at 592.
(70.) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803).
(71.) James B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129, 144 (1893) (He didn't say clearly erroneous, but he did say “It can only disregard the Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one—so clear that it is not open to rational question”).
(72.) The constitutionality of the third statute turns on the extent to which one regards it as indistinguishable from a regulation of the Court's jurisdiction. (p.271) If one were to accept the statute as the latter, then its constitutionality turns on the scope of congressional authority to regulate federal jurisdiction. If the Congress had unfettered discretion to regulate federal jurisdiction, it would follow that Congress may decide to foreclose an entire realm of the Constitution from further judicial review once the Court reached what Congress considered to be a correct interpretation of the Constitution. A statute that effectively regulated the Court's jurisdiction in this manner would be similarly constitutional.
(73.) U.S. Const. art. II, § 4 (“The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors”).
(74.) There is no persuasive or good evidence to suggest that the Framers had ever believed that a mistake in constitutional interpretation could plausibly constitute a legitimate basis for impeaching and removing a judge from office. See Michael J. Gerhardt, Chancellor Kent and the Search for Elements of Impeachable Offenses, 74 Chi.‐Kent L. Rev. 91, ffi (1998).
(75.) See Evan H. Caminker, Sincere and Strategic Voting Norms on Multimember Courts, 97 Mich. L. Rev. 2297, 2329 (1999).
(76.) See generally, U.S. v. Lopez, 514 U.S. 549, 574, 115 S. Ct. 1624, 1637, 131 L. Ed. 2d 626, (1995) (Kennedy, J., concurring) (“The second, related to the first but of even greater consequence, is that the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature”); Quill Corp. v. North Dakota, 504 U.S. 298, 317, 112 S. Ct. 1904, 1916, 119 L. Ed. 2d 91, (1992) (“The ‘interest in stability and orderly development of the law’ that undergirds the doctrine of stare decisis, see Runyon v. McCrary, 427 U.S. 160, 190–191, 96 S. Ct. 2586, 2604–2605, 49 L. Ed. 2d 415 (1976) (Stevens, J., concurring), therefore counsels adherence to settled precedent”); Williams v. North Carolina, 317 U.S. 287, 323, 63 S. Ct. 207, 225, 87 L. Ed. 279 (1942) (Jackson, J., dissenting) (“This Court may follow precedents, irrespective of their merits, as a matter of obedience to the rule of stare decisis. Consistency and stability may be so served. They are ends desirable in themselves, for only thereby can the law be predictable to those who must shape their conduct by it and to lower courts which must apply it. But we can break with established law, overrule precedents, and start a new cluster of leading cases to define what we mean, only as a matter of deliberate policy”); Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601, 663, 15 S. Ct. 912, 930, 39 L. Ed. 1108, (1895) (Harlan, J., dissenting) (“While, in a large sense, constitutional questions may not be considered as finally settled, unless settled rightly, it is certain that a departure by this court from a settled course of decisions on grave constitutional questions, under which vast transactions have occurred, and under which (p.272) the government has been administered during great crises, will shake public confidence in the stability of the law”).
(77.) U.S. (1 Wheat.) 304, 4 L. Ed. 97 (1816).
(78.) U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819).
(79.) See Christopher J. Peters, Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis, 105 Yale L.J. 2031, 2050 (1996); Michael C. Dorf, The Supreme Court, 1997 Term—Foreword: The Limits of Socratic Deliberation, 112 Harv. L. Rev. 4, 8 (1998).
(80.) See, e.g., Richard A. Posner, The Problematics of Moral and Legal Theory (Harvard Univ. Press 1999).
(81.) U.S. Const. art. I, § 2, cl. 1.
(82.) See Knox v. Lee, 79 U.S. 457 (1870).
(83.) See Santa Clara County v. Southern P.R. Co., 118 U.S. 394 (1886).
(84.) For comments on the tension between legal tender and original meaning, see, e.g., Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723, 744 (1988); Kenneth W. Dam, The Legal Tender Cases, 1981 Sup. Ct. Rev. 367, 389 (1981); Peter B. McMutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of Second Best, 80 Cornell L. Rev. 1, 17 (1994). While some scholars claim legal tender is consistent with original meaning, their claim turns, among other things, on ignoring the fact that it inexplicably eluded the dissenters in Knox v. Lee, including Chief Justice Chase, who as treasury secretary had been a leader in the administration's production of legal tender. For comments on the original understanding of the Fourteenth Amendment as not including corporations within the term “person”, see, e.g., Raoul Berger, Colloquy: Original Intent and Boris Bittker, 66 Ind. L.J. 723, 749 (1991); Howard Jay Graham, The Conspiracy Theory of the Fourteenth Amendment, 47 Yale L.J. 371, 381 (1938).
(85.) U.S. 419 (1793).
(86.) U.S. Const. amend. XI (“The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state”).
(87.) For commentaries that Eleventh Amendment doctrine is driven principally by precedent, see, e.g., John T. Noonan, Jr., Narrowing the Nation's Power: The Supreme Court Sides with the States 153 (Univ. of California Press 2002); Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1, 3 (1988). See also David J. Cloherty, Exclusive Jurisdiction and the Eleventh Amendment: Recognizing the Assumption of State Court Availability in the Clear Statement Compromise, 82 Cal. L. Rev. 1287, 1312 (1994); William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrower Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033, 1060 (1983).
(88.) Seminole Tribe v. Fla., 517 U.S. 44, 95 (1996) (Stevens, J., dissenting) (“Except insofar as it has been incorporated into the text of the Eleventh Amendment, the doctrine [of sovereign immunity] is entirely the product of judge‐made law”).
(89.) U.S. 1 (1890).
(90.) Welch v. Texas Department of Highways and Public Transportation, 483 U.S. 468, 496 (Scalia, J., concurring in part and concurring in the judgment) (“Regardless of what one may think of Hans, it has been assumed to be nearly the law for nearly a century. During that time, Congress has enacted many statutes … on the assumption that States were immune from suits by individuals. Even if we were to find that assumption to have been wrong, we could not, in reason, interpret the statutes as though the assumption never existed”).
(91.) See, e.g., Alden v. Maine, 527 U.S. 706 (1999); College Savings Bank v. Florida Board, 527 U.S. 666 (1999); Seminole Tribe, 517 U.S. at 44.
(92.) The Seventh Amendment provides in pertinent part that “the right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise re‐examined in any Court of the United States, than according to the rules of the common law.” U.S. Const. amend. VII.
(93.) See, e.g., Margaret L. Moses, What the Jury Must Hear: The Supreme Court's Evolving Seventh Amendment Jurisprudence, 68 Geo. Wash. L. Rev. 183 (2000) (noting that the Supreme Court's “evolving Seventh Amendment jurisprudence” in the 20th century emerged in four distinct strands).
(94.) See Markman v. Westview Instruments, Inc., 517 U.S. 370, 384 (1996) (“Since evidence of common‐law practice at the time of the framing does not entail application of the Seventh Amendment's jury guarantee to the construction of the claim document, we must look elsewhere to characterize this determination of meaning in order to allocate it as between court or jury. We accordingly consult existing precedent and consider both the relative interpretive skills of judges and juries and the statutory policies that ought to be furthered by the allocation”).
(95.) See Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited 298 (Cambridge Univ. Press 2002) (“The justices are rarely influenced by stare decisis”).
(96.) Burkeans tend to accept the evolution of constitutional decisions in a common‐law‐like manner (issues dealt with on a case‐by‐case or incremental basis) and our entire history since the Founding. See, e.g., Ernest A. Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. Rev. 619 (1994).
(97.) For empirical analysis supporting this conclusion, see James H. Fowler & Sangick Jeon, The Authority of Supreme Court Precedent: A Network Analysis (June 29, 2005), available at http://jhfowler.ucdavis.edu/authority_of_supreme_court_precedent.pdf.
(98.) Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26 (2000). Amar divides constitutional theorists into two camps—those who put the document first and those who put precedent first. While the latter differ in their reasons for putting precedent first, their common ground is a strong view of precedent.
(99.) Bruce Ackerman, We the People, Volume II, Transformations, at 5 (Belknap Press 1988) [hereinafter Volume II].
(100.) Id. at 418.
(101.) Id. at 419.
(102.) See generally Ronald Dworkin, Taking Rights Seriously 22–39 (Harvard Univ. Press 1997). For Dworkin's most recent articulation and defense of his legal philosophy and critique of rival theories, see Justice in Robes (Harvard Univ. Press 2006).
(103.) Ronald Dworkin, Law's Empire 228–38 (Belknap Press 1986).
(104.) Dworkin argues that empirically judges regard themselves as bound by the law and decide cases as if they are bound to find what the law is. This approach is consistent with their constitutional obligations. Judges are not entitled to exercise broad discretion because they have no democratic mandate to do so.
(105.) David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 833, 879 (1996) (suggesting, inter alia, constitutional decisions evolve like the common law). See also Henry P. Monaghan, The Supreme Court, 1974 Term—Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1 (1975) (suggesting Supreme Court precedents have the status of constitutional common law, which is superior to legislation or statutes but may be displaced by the Court or constitutional amendment); Kermit Roosevelt, Constitutional Calcification, 91 Va. L. Rev. 1649, 1693 (2005) (discussing how “when a stable jurisprudential regime has persisted for a period of time, decision rules can be mistaken for constitutional operative principles”); Mitchell Berman, Constitutional Decision Rules, 90 Va. L. Rev. 1, 9, 13, 80 n.145 (2004) (dividing constitutional doctrine into (1) “constitutional operative propositions,” which “represent the judiciary's understanding of the proper meaning of a constitutional power, right, duty, or other sort of provision,” and (2) “constitutional decision rules,” which are “doctrines that direct courts how to decide whether a constitutional operative proposition is satisfied”).
(106.) Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22 (1992).
(107.) Kathleen M. Sullivan, The Jurisprudence of the Rehnquist Court, 22 Nova L. Rev. 743 (1998).
(108.) Lawrence Solum proposes the Court should “abandon its adherence to its doctrine that it is free to overrule its own decisions.” Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. Pa. J. Const. Law 155 (2006). (p.275) He defends a “revival of formalist revival that would create theoretical space for the idea that the Supreme Court should regard itself as bound by precedent.” He expects this revival to have the virtue of making justices more hesitant to take liberties, or to experiment, with broader, more aggressive constructions of the text. Another benefit might be encouraging justices to draft narrower opinions to allow themselves more discretion in future cases. See also Thomas W. Merrill, Orginalism, Stare Decisis, and the Promotion of Judicial Restraint, 22 Const. Comm. 271 (2005) (arguing that “a strong theory of precedent is more likely to produce judicial restraint”).
(109.) See, e.g., Michael J. Gerhardt, The Role of Precedent in Constitutional Decisionmaking and Theory, Geo. Wash. L. Rev. 68, 116 (1991).
(110.) For a similar view, see Ward Farnsworth, Signatures of Ideology: The Case of the Supreme Court's Criminal Docket, 104 Mich. L. Rev. 71 (2005).
(111.) Farnsworth suggests “in cases where it's close—where maybe the rationale is present or maybe it isn't, or where the formal statement of the rule from the first case leaves a little room to question its fit in the second one—where should a judge look for guidance? There is really nothing to consider but his own immediate perception of which makes more sense, and this will trade heavily on intuitions about the underlying policies at stake.” Id. at 81. On my view, the “underlying policies at stake” whenever justices are considering what to count as precedent, depends on many other factors, including their constructions of other precedents.
(112.) Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model (Cambridge Univ. Press 1993).
(113.) See Harold J. Spaeth & Jeffrey A. Segal, Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court (Cambridge Univ. Press 1999).
(114.) See Segal & Spaeth, supra note 95, at 48 (citations omitted.)
(115.) Id. (quoting Law's Empire, supra note 103, at 255).
(116.) See Taking Rights Seriously, supra note 102, at 401.
(117.) Id. at 47.
(118.) Id. at 292.
(119.) See id. at 401.
(120.) See Segal & Spaeth, supra note 95, at 292 (quoting Ronald Kahn, Interpretive Norms and Supreme Court Decision‐Making: The Rehnquist Court on Privacy and Religion, in Supreme Court Decision‐Making: New Institutionalist Approaches 75 (C. W. Clayton & H. Gillman eds., Univ. of Chicago Press 1999)).
(121.) See Segal & Spaeth, supra note 95, at 298 (quoting C. Herman Pritchett, The Development of Judicial Research, in Frontiers of Judicial Research 42 (J. B. Grossman & J. Tanenhaus eds., John Wiley & Sons 1969)).
(122.) See Segal & Spaeth, supra note 95, at 296.
(123.) Id. at 298.
(124.) Id. at 300.
(125.) Id. at 306.
(126.) Id. at 309–10.
(127.) See Edward L. Rubin, The New Legal Process, the Synthesis of Discourse, and the Microanalysis of Institutions 109 Harv. L. Rev. 1393, 1406 (1996) (“Positive political theory is similar to public choice theory in its view of public officials as rational self‐interest maximizers. Instead of restricting self‐interest to the individual, however, positive political theory analyzes institutional interests as well and views members of the institution as maximizing the power or discretion of the institution as a whole”). For a discussion of motivations, including formulating policy, political goals, the desire to reach “principled” decisions, and upholding institutional legitimacy, see Lee Epstein & Jack Knight, The Choices Justices Make 22–51 (CQ Press 1998).
(128.) Attitudinalists question rational choice theorists' assumption that the institutional framework provides constraints sufficient to cause justices to manipulate the law or vote outside of their personal policy preferences. See Segal & Spaeth, supra note 15, at 111. See also Jeffrey A. Segal, Separation‐of‐Powers Games in the Positive Theory of Congress and Courts, 91 Amer. Pol. Sci. Rev. 28, 42–43 (1997) (citing evidence that “suggests that justices can act in a sophisticated fashion when they need to do so. But the institutional protections granted the Court mean that with respect to Congress and the presidency, they almost never need to do so”) (emphasis in original)).
(129.) See Segal & Spaeth, supra note 95, at 99–100 (citation omitted, ellipsis in original).
(132.) Id. at 102.
(133.) Id. at 111.
(134.) Jack Knight & Lee Epstein, The Norm of Stare Decisis, 40 Am. J. Pol. Sci. 1018–39 (1996).
(135.) Jeffrey A. Segal & Harold J. Spaeth, Norms, Dragons, and Stare Decisis: A Response, 40 Am. J. Pol. Sci. 1064–82 (1996).
(136.) See Andrew D. Martin & Kevin M. Quinn, Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the Supreme Court, 1953–1999, 10 Pol. Analysis 134 (2002).
(137.) Jack Goldsmith & Adrien Vermeule, Empirical Methodology and Legal Scholarship, 69 U. Chi. L. Rev. 153, 154–55 (2002).
(138.) Id. at 155.
(139.) See Segal & Spaeth, supra note 95, at 298 (“The levels of precedential behavior that we find in the U.S. Supreme Court are simply not consistent with the sorts of arguments we find, for example, in Dworkin, Kahn, or any of the other legalists that we have discussed”).
(140.) Gerald N. Rosenberg, The Supreme Court and the Attitudinal Model, 4 Law & Cts. 6, 7 (1994).
(141.) Vincent Blasi, Praise for the Court's Unpredictability, N.Y. Times, July 16, 1986, at 23.
(142.) See Goldsmith & Vermeule, supra note 137, at 155 (“The substance of much legal scholarship is doctrinal, interpretive, and normative. Subgenres in this category include articles and books that attempt to reconcile or distinguish lines of precedent displaying internal tensions; that provide conceptual analysis of the internal logic of statutes, cases, and other materials; and that provide novel readings of canonical legal sources. The best legal scholarship combines these features, fitting confused canonical materials together in a coherent way and presenting the materials in a normatively attractive light. Work in this vein contains no empirical claims in any important or contestable sense—at least not if ‘contestable’ is defined by reference to the internal consensus of legal academics”).
(143.) Only recently have some social scientists begun to test the extent to which sources other than precedent constrain courts. See, e.g., Robert M. Howard & Jeffrey A. Segal, An Original Look at Originalism, 36 Law & Soc'y Rev. 113, 133 (2002) (questioning whether justices base their decisions on the meaning of the text and the intent of the Framers).
(144.) See generally Should Ideology Matter? Judicial Nominations 2001: Hearing before the Subcommittee on Administrative Oversight and the Courts of the Senate Committee on the Judiciary, 107th Cong. App. (2001).
(145.) See Segal & Spaeth, supra note 95, at 295.
(146.) See, e.g., Eldred v. Aschroft, 537 U.S. 186 (2003) (upholding 7–2 Congress' repeated extensions of the rights of copyright ownership in spite of constitutional language allowing Congress to do so for “limited terms”); Reno v. Condon, 528 U.S. 141 (2000) (unanimously upholding Congress' power to bar states from disclosing or selling personal information required for drivers' licenses); Saenz v. Roe, 526 U.S. 489 (1999) (reinvigorating, 7–2, the privileges or immunities clause); Clinton v. Jones, 520 U.S. 681 (1997) (unanimously holding that sitting presidents are not entitled to any immunity from civil lawsuits based on their unofficial misconduct); United States v. Virginia, 518 U.S. 515 (1996) (ruling 7–1 Virginia Military Academy's policy of excluding women as students violated equal protection); Nixon v. United States, 506 U.S. 224 (1993) (unanimously agreeing that the Court lacked the power to review the constitutionality of the procedures employed by the Senate in judicial impeachment trials); Morrison v. Olson, 487 U.S. 654 (1988) (upholding 8–1 the constitutionality of the Independent Counsel Act); United States v. Nixon, 418 U.S. 683 (1974) (unanimously holding presidents are not entitled to absolute executive privilege that would allow them unilateral discretion over whether to comply with otherwise lawful subpoenas).
(147.) Virginia v. Black, 538 U.S. 343 (2003).
(148.) See U.S. Const., art. III., § 1.
(149.) See Posner, supra note 80, at 118–19.
(150.) For one of the rare efforts by political scientists to explain legal change, see Thomas G. Hansford & James F. Spriggs II, The Politics of Precedent on the U.S. Supreme Court (Princeton Univ. Press 2006). Hanford and Spriggs attribute legal change to both the ideological distance of the Court to a precedent and the vitality—or extent of authority—of that precedent. I discuss their methodology and its implications in each of the next two chapters.
(151.) See id. at 117 (“Unquestionably, John Marshall dominated his Court as no other justice has”).
(152.) Republican appointees filled 10 of the 11 vacancies arising on the Court during Marshall's tenure.
(153.) William Winslow Crosskey, Mr. Chief Justice Marshall, in Mr. Justice: Biographical Studies of Twelve Supreme Court Justices 5 (Allison Dunham & Philip B. Kurland eds., Univ. of Chicago Press 1964).
(154.) Id. at 12.
(155.) Id. at 18.
(156.) The Court rejected this view in Wheaton v. Peters, 8 Pet. 591 (1834).
(157.) See Segal & Spaeth, supra note 95, at 323.
(158.) See Michael J. Gerhardt, The Rhetoric of Judicial Critique: From Judicial Restraint to the Virtual Bill of Rights, 10 Wm. & Mary Bill of Rights J. 585, 637–38 (2002).
(159.) Leonard Baker, Brandeis and Frankfurter: A Dual Biography 456 (New York Univ. Press 1984).
(160.) Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491 (1939) (Frankfurter, J., concurring).
(161.) See Segal & Spaeth, supra note 15, at 118–19, 130, 132–33, 135, 138, 153, 156, 159.
(162.) I review these decisions in chapters 2 and 6.
(163.) U.S. 436 (1966).
(164.) U.S. 428 (2000).
(165.) See The Supreme Court in American Politics: New Institutionalist Interpretations (H. Gillman & C. W. Clayton eds., Univ. Press of Kansas 1999); Keith Whittington, Once More Unto the Breach: PostBehavioralists Approaches to Judicial Politics, 25 Law & Soc. Inquiry, 601, 607 (2000) (reviewing Supreme Court Decision‐Making: New Institutionalist Approaches (Clayton & Gillman eds., 1999)).
(166.) Id. at 617.