When at Times the Mob Is Swayed

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When at Times the Mob Is Swayed Page 16

by Burt Neuborne


  Respecting past judicial precedent is also a key component of the notion of “equal justice under law.” If stare decisis didn’t exist, judges, bound only by ambiguous naked text and their own values, would routinely decide identical cases differently. It happens in Europe all the time.

  Imagine two litigants with the same legal case in the same courthouse on two consecutive days. Stare decisis ensures that once the first case is decided, both litigants will receive the same legal result—the essence of equal treatment. Maybe both are being treated wrongly, but at least they are being treated the same. If the order of the two cases were reversed, the first case might have come out differently, and the binding precedent in the second case might be wholly different. It is far from reassuring to realize that decisional equality often comes at such an arbitrary price.

  Finally, there’s a strong whiff of institutional self-interest in a judge’s respect for precedent. Stare decisis turns out to be very good for judicial business. You might think that a judge would be resentful of the duty to defer to a dusty precedent, especially if she has doubts about its correctness. But most judges embrace their precedential chains for at least three self-interested reasons. In the first place, it’s a relief for a judge to be able to say, “I know this decision may seem unfair. But don’t blame me. I’m just following orders from a past judge.” Every one of us craves the absolution of duty. Judges are no different.

  If, moreover, every case had to be decided anew, the strain on judicial resources would be enormous. It’s much easier to buy an existing suit off the rack, even if the color and fit aren’t quite right, than to weave, cut, and sew the perfect suit from scratch.

  Most important, the loss of individual judicial autonomy that stare decisis imposes is more than compensated for by an increase in collective judicial power. Paradoxically, if every judge were free to ignore precedent, each would enjoy greater individual power, but who except for the litigants would care what the judge says? The judiciary would lose its institutional power to command. Everyone except the litigants would be free to ignore the first judge and take their chances with the next one. If, however, the judges all pledge allegiance to the first decision, right or wrong, each judge—and the judiciary as a body—acquires the capacity to issue powerful commands that bind everyone precisely because there is no future wiggle room to avoid them.

  So whether it’s just human nature, practical wisdom, concern for equality, or judicial self-interest, scratch an American judge and she bleeds stare decisis. That means that precedents enforcing substantial autonomy-enhancing aspects of the red Constitution announced by past Republican-controlled Supreme Courts and decisions enforcing substantial equality-enhancing aspects of the blue Constitution announced by past Democratic Supreme Courts unite under stare decisis to form a legally congealed body of constitutional norms that bind the lower courts and are binding on future Supreme Courts, whether red or blue—even when one or more of the justices think those cases may have been wrongly decided.

  That’s the principal raw material for our constitutional rule of law. How stable is it?

  Constitutional precedents exist in two dimensions. The most enduring aspect of a precedent is the precise fact pattern or legal issue before the first court. That outcome is locked in stone, not only by stare decisis but also by the related doctrines of res judicata and collateral estoppel, requiring future courts to respect the first court’s resolution of the fact pattern or legal issue. If that’s all there were to stare decisis, though, it would be thin gruel. It wouldn’t cover much. If, for example, our ancestors required the ritual fast only when the hunt fell on January 1 or involved a certain kind of prey, the precedent would have a limited scope. We endow our judicial precedents with much greater power to bind. A principled American judge is expected to respect a precedent not only in factually or legally identical settings but in logically indistinguishable ones as well. Thus, judges in the American system must decide how far the analogical tentacles of a past precedent reach. If a case bars racial discrimination in access to public schools, does the precedent cover gender discrimination? Does it cover racial discrimination in public parks? How about private employment? In effect, our judges get to ask: “If the duty to fast applies to hunting, why not to fishing? Why not to harvesting crops? Why not before human births?”

  As with imaginative readings of text, therefore, the imaginative analogical use of precedents is a narrative analytical skill of a high order. Good lawyers can use analogy to weave a skein of logically related precedents purporting to bind a judge. The problem is that good lawyers on the other side can seek to unravel the skein by attacking the analogies—in lawyer-talk, “distinguishing” the precedent.

  The process is further complicated because judges speak in two voices—“holding” and “dictum.” “Holding” is the voice of judicial command, setting forth the legal rule that is entitled to stare decisis respect. Dictum is the voice of judicial persuasion, explaining and defending the judge’s reasoning. The working definition of a holding is the portions of a judicial opinion that are logically necessary to the result. Everything else is dictum.

  Unfortunately, judges do not use different color ink to separate holding from dictum. Later judges are often confronted with conflicting arguments about what the first court actually held—as opposed to what it just said. You can imagine how often lawyers bicker over whether a past precedent is a holding or just a dictum. The problem only gets worse as judges—especially Supreme Court justices—complicate judicial opinions with academic articles and political essays, routinely writing extremely long opinions replete with learned asides and elaborate footnotes.

  On the other hand, dictum is valuable as a window into the judge’s mind, helping lawyers and clients to make educated guesses about what the legal world will look like in the future—but only as long as the judge spouting the dictum remains on the bench. Newly appointed judges must respect holdings but will be free to reject dictum.

  Complex as the process of applying stare decisis may be, in a surprising number of cases, good lawyers and able judges generate persuasive stories about the scope and binding nature of past precedents, allowing an intellectually honest judge to be persuaded that the legal landscape tilts in favor of one of the parties. Values don’t come into play—at least consciously. Often, though, contested questions about the scope of the holding, its analogical force in the current case, and the wisdom of remaining blindly loyal to the past, present a principled judge with a legal tie that must inevitably be broken by resort to values.

  The value-laden tiebreakers impacting stare decisis are often more complex (and less partisan) than the choice between autonomy under the red Constitution and equality under the blue. In addition to the usual values of autonomy and equality, the judge, in deciding whether to recognize or respect a precedent, must balance the importance of stability in the law against the need for change; the social and economic consequences of uprooting settled expectations created by the old precedent, especially when what is being uprooted is a rights-bearing precedent (that’s why the Supreme Court has never formally overturned a constitutional case granting rights, including the notorious Lochner v. New York); the social harm being caused by the old precedent; the degree to which the factual or intellectual underpinnings of a precedent have already been eroded; and the effect on law itself of weakening stare decisis.

  In my experience, those choices are, ultimately, so complex that no two judges approach the issues in the same way. The result is a kaleidoscopic array of possible outcomes depending on the interplay of a judge’s raw intellectual ability, the intensity of the judge’s commitment to stability, the intellectual power of the arguments in favor of retaining the binding power of a given precedent, and the intensity of the judge’s value-laden agreement or disagreement with the original precedent.

  Such a complex interplay ordinarily results in the enforcement of a controversial precedent. Occasionally, though, the binding force of pr
ecedent will be rejected or circumvented. That’s what happened in Brown v. Board of Education in 1954 when the Warren Court unanimously overruled precedents upholding government-imposed racial segregation. It’s what happened in 2018 when the Supreme Court narrowly overruled forty years of precedents authorizing public employee unions to levy agency fees on dissenting nonmembers. It’s what may happen to Roe v. Wade.

  It turns out that the moving parts of applying the doctrine of stare decisis are so complex, so intellectually difficult to operate, and so shot through with discretionary branching points that the act of deciding whether a precedent is binding, to say nothing of whether it should be abandoned or eroded, is often influenced, perhaps unconsciously, by a judge’s values. The bottom line is that stare decisis will usually, but not always, provide powerful protection for large swaths of the purple Constitution. Change the judges, though, and what looks like stable protection can evaporate overnight.

  So don’t kill all the lawyers, but don’t count on them too much, either. Reliance on precedent can only take you so far. The name of the game is still winning elections and populating the judiciary with judges who care deeply about equality as well as autonomy.

  Finally, in addition to text and precedent, the bipartisan purple Constitution thrives when powerful legal arguments exist that advance both autonomy and equality. Consider, for example, the strong current bipartisan Supreme Court protection of free speech beginning in the late 1960s and peaking in 1989 when two iconic Democratic justices, William J. Brennan Jr. and Thurgood Marshall, joined three Republican justices—Harry Blackmun, Anthony Kennedy, and Antonin Scalia—to rule that burning the American flag in protest is a protected form of free speech. The Democratic justices saw the case as both respecting a “speaker’s” autonomy and as protecting the equal rights of radicals to protest the status quo. The Republicans saw it as a pure protection of individual autonomy. The rest is history.

  When, however, as in later First Amendment cases involving campaign finance regulation or hate speech, autonomy and equality tugged in different directions, the purple Constitution’s value consensus fell apart, moving the case back into the contested realm of the red and blue Constitutions, where a Republican Supreme Court will break the value tie in favor of autonomy, while a Democratic Supreme Court will break it in favor of equality—with either or both decisions qualifying as a binding precedent for the future.

  Progressive lawyers should, therefore, continue to invoke the purple Constitution in defense of both autonomy and equality. The success of their efforts will undoubtedly be significantly affected by their skill and dedication. But, no matter how skilled the lawyers, the project is far more likely to protect autonomy-based rights—such as speech and the free exercise of religion—and already existing equality-based rights that are rooted in powerful precedent, rather than to provide additional equality-based protection for the weak.

  7

  In Praise of Seventh-Grade Civics

  Separation of Powers in the Time of Trump

  I’ve been looking through my seventh-grade civics notes for hints about how to protect the Constitution from Trump. You’ll no doubt be relieved to learn that my class notes assure me the twin constitutional doctrines of separation of powers and federalism are designed to prevent the president from assembling a dangerous concentration of power. My notes also assure me that if we defend those two doctrines, the Trump era will eventually disappear in the rearview mirror, reduced to a speed bump on the road to genuine democracy.

  I wish that my notes were easier to decipher, though. The doctrines of separation of powers and federalism, like the other parchment barriers in the Constitution, are only as strong as the people’s commitment to them. What does it mean for an ordinary American who hasn’t suffered through law school to be committed to amorphous concepts such as separation of powers and federalism? How can an ordinary American know what types of power the Constitution is referring to, how they should be separated, and who should exercise them?

  Similarly, when we talk about federalism, how does an ordinary American know what issues to leave to the states, what to put into the national pot, and what to share?

  Until we free these questions from the political polemic and legal jargon in which they are currently enmeshed, it will be virtually impossible for most Americans to distinguish Trump’s painful but ultimately correctible political mistakes from his dangerous, potentially lethal assaults on our constitutional structure. The distinction between mere political error and structural assault is very important. I oppose pretty much everything Trump does and stands for. But there are only twenty-four hours in the day. I reserve my most intense opposition for Trump’s assaults on three foundational ideas on which American democracy rests—separation of powers, federalism, and achieving a morally acceptable balance between individual autonomy and collective equality.

  As we’ve seen, finding the constitutional sweet spot between autonomy and equality is the essence of much constitutional judging. It’s our way of trying to balance the right of the individual (especially a strong individual) to do whatever he or she wants against the right of everyone (especially the weak) to be treated as an equal. That’s what the Supreme Court does when it interprets the First Amendment as a great bulwark of individual autonomy and the Fifth and Fourteenth Amendments as great bulwarks of collective equality.

  As we’ve also seen, over the years, principled disagreement over the proper balance between autonomy and equality is what differentiates most Republican Supreme Court justices from their Democratic colleagues. Ordinary Americans need not attend law school to have strong opinions on whether the justices are getting that balance right. When it comes to separation of powers and federalism, though, how can an ordinary American know which resistance gear to be in? It’s one thing to make a personal assessment about whether Trump (or the Supreme Court) is veering dangerously close to allowing the glorification of individual autonomy to erode or even extinguish the protection of equality. It’s another to make an informed judgment about whether the president or the Court is eroding structural protections against excessive government power, such as separation of powers and federalism.

  I would not put much hope into getting useful guidance on those questions from the electronic media, especially cable TV or the internet. A steady diet of semihysterical political polemic has reduced virtually everything in the electronic media to slogans designed to score points for or against the president. Don’t even think of getting thoughtful guidance from politicians. They know less about the Constitution than you do. Even if they knew the answers, they wouldn’t tell you unless doing so advanced their short-term political interests. Nor are lawyers and judges likely to give ordinary Americans serviceable answers. They will be quick to tell you that the answers are revealed in the constitutional text. They will also assure you that they know exactly what the text says. Unfortunately, no two of the so-called textual experts agree. The task is made even harder because the words “separation of powers” and “federalism” do not appear in the Constitution. James Madison urged the Founders to insert an explicit protection of separation of powers into the Bill of Rights, but Madison’s colleagues didn’t think it was necessary.

  Despite the lack of textual guideposts and the political sloganeering, though, it is possible for someone who has not suffered through law school to know when Trump crosses a red line. Let’s start with separation of powers, which is just a label describing a cautious way to run a government by seeking to identify and catalogue the various tasks (or powers) carried out by government, and then allocating each task to a separate group of officials. It could just as easily be called “separation of tasks,” “division of functions,” or “allocation of powers.”

  Separation of powers should be contrasted with a competing way of running a government where complete governing authority is concentrated in a single person or group. One of the crucial branching points in the history of political thought occurred in Europe
during the seventeenth and eighteenth centuries in connection with efforts by segments of the landed aristocracy and the newly wealthy merchant classes to limit the “divine right” of kings, a theory of government that concentrated absolute governing authority in the hands of a hereditary monarch.

  One revolutionary path, trod by the French, called for the overthrow of the absolute monarch and the substitution of something or somebody more palatable—like an elected legislature or a strong leader—with the complete power to govern. We have learned from painful experience that transferring absolute governing power from a king to somewhere else isn’t all that much of an improvement. The potential for royal terror just morphs into a potential tyranny of whoever manages to get their hands on the levers of absolute power, whether his name is Robespierre at the head of the National Assembly; or Adolf Hitler, Joseph Stalin, or Pol Pot, governing at the point of a gun.

  Forget about history and political science. If you really want to know why vesting too much governing power in the hands of a single person or group is so dangerous, read Stendhal’s great 1839 novel The Charterhouse of Parma, which describes the terror of living under arbitrary one-man rule. Lord Acton, the celebrated nineteenth-century British historian, was right when he warned that “absolute power corrupts absolutely.”

 

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