Supreme Court Justice Brett Kavanaugh wasn’t quite successful when he tried this week to answer the thorny question of when court precedent should be binding and when instead it should be overturned.
Kavanaugh’s concurring opinion on Monday in a criminal-justice case called Ramos v. Louisiana amounted to a disquisition on the legal doctrine of “stare decisis.” The doctrine, whose name means “let the decision stand,” holds that, in general, courts should respect precedent and avoid frequently or arbitrarily changing the way they rule on the same issue.
Quoting a 1991 case, Kavanaugh wrote that the doctrine “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”
Still, he wrote, the court sometimes is obliged to “overrule erroneous precedents,” such as when the 1954 case of Brown v. Board of Education overruled the noxious theory of “separate but equal” legal protections for blacks and whites. The question is, when is a decision so erroneous that the court should jettison stare decisis?
Kavanaugh attempted to answer this systematically, but only the first part of his system works. He wrote that precedents involving interpretation of mere statutes, rather than of constitutional provisions, merit greater deference. “Congress and the president can alter a statutory precedent by enacting new legislation,” he explained, so a court’s error is correctable by those republican processes. So far, so good.
Kavanaugh’s analysis gets dicey, though, when outlining conditions for ignoring stare decisis in constitutional (not statutory) interpretation. To do so, he rightly said, requires “special justification” or “strong grounds.” The question is, what sorts of things qualify as “special” or “strong?”
Kavanaugh recommended three criteria. The first, he said, is if “the prior decision is not just wrong, but grievously or egregiously wrong.” The second is if “the prior decision caused significant negative jurisprudential or real-world consequences.” The third is if overruling the decision would not “unduly upset reliance interests.” (“Reliance interests” is legal jargon for economic or legal expectations that have become so embedded that the legal system would experience too much upheaval if those expectations are changed.)
“Taken together,” Kavanaugh writes, “those three considerations set a high (but not insurmountable) bar for overruling a precedent, and they therefore limit the number of overrulings and maintain stability in the law.”
The problem lies in the words “taken together.” The rest of his opinion suggests that precedent should be overturned only if all three conditions are met. Surely, this standard goes too far in protecting even erroneous precedent.
Should it not be enough, in most cases, to determine that a precedent is “egregiously wrong?” Demanding that judges assess “real-world consequences” is a worrisome invitation for them to analyze not just the Constitution but also the policy outcomes of their decisions. The justices’ policy preferences could lead them to uphold precedents that otherwise are constitutional abominations.
For example, many people believe that the 2005 Kelo v. New London case, which allowed private homes to be seized (with “just compensation”) for purposes of a lucrative private development, was an outlandish misreading of the Constitution. Yet, if a business-friendly justice agrees Kelo was “egregiously” decided by the Constitution’s plain words, but believes the “real-world consequences” still argue in favor of “economic development,” then Kelo’s grievous precedent would stand.
Let’s rely on legislators to worry about policy consequences, while judges stick to the law as written. As Justice Clarence Thomas wrote in a separate opinion agreeing with this week’s result in Ramos, but not its reasoning, Kavanaugh’s “formulation” of stare decisis “elevates demonstrably erroneous decisions … over the text of the Constitution” itself.
Precedent is important in its place. But its place is beneath, not instead of, the Constitution. Kavanaugh’s disquisition gets that hierarchy wrong.
