A Republic, If You Can Keep It

by Neil Gorsuch

  To be sure, much more could be said about Finnis’s contribution to the question of intention in crime and tort. There is a great deal more complexity and subtlety both to his arguments and to those of his antagonists than I can stitch out in these few pages. And many more difficulties to explore. Like the incommensurability problems Finnis argues can sometimes attend consequentialist explanations of the law. Or the complexities involved in trying to distinguish intended means and ends from unintended side effects. Or the question when exactly the law should take special cognizance of intent and distinguish intended consequences from those merely known or foreseen. After all, while Finnis reminds us that the law may take cognizance of an analytically and normatively meaningful distinction between intended and unintended conduct, he hardly suggests that the law always must do so or that other bases for legal liability should not exist—two positions that would themselves be plainly mistaken.

  But let me leave those issues dangling. For our purposes here it is enough to note that Finnis has done much to remind us that the law’s use of intention as a basis for liability is not always and wholly beside the point; that the law’s focus on intent can, at least sometimes, be both analytically and normatively justified; and that all this can make a significant difference in the analysis of many legal questions across many fields and in many different ways. Finnis’s work has helped explain and defend the thicket of the common law’s traditional mens rea rules, reminding us of the intellectual pedigree of those rules and of the reasons why the law has often and for so long taken care with what sometimes seem complex and unduly fine distinctions. No doubt the debate will continue, with rejoinders made and new lessons learned. But no one seeking to raze or reimagine the law’s protective mens rea forest in favor of some (surely well-intentioned) alternative vision will be able to do so without first confronting Finnis’s defense. And that, though but a very small part of Finnis’s body of work, represents a significant achievement indeed.

  ON PRECEDENT

  When should judges follow—or overrule—a prior decision they earnestly believe to be mistaken? Most everyone would agree the answer isn’t always or never; judgment is required. Trying to tease out and assess the relevant considerations took twelve distinguished collaborators and me two years and nine hundred pages. What follows doesn’t try to summarize all we said but represents our introduction to the book. This piece is adapted from Bryan A. Garner et al., The Law of Judicial Precedent (2016), and reprinted with permission of Thomson Reuters. My co-authors included Carlos Bea, Rebecca White Berch, Harris L Hartz, Nathan L. Hecht, Brett M. Kavanaugh, Alex Kozinski, Sandra L. Lynch, William H. Pryor, Jr., Thomas M. Reavley, Jeffrey S. Sutton, and Diane P. Wood.

  One might be tempted to say, after long and hard study, that the law of judicial precedent amounts to no more than this: All tribunals look at decisional precursors; all have at least some discretion in deciding whether to follow those precursors (or to distinguish them); and the higher the court, the greater its discretion. That’s about it.

  But that’s gross reductionism. There’s actually much more to it than that. There are nuances and complications. It takes patience and acuity to work through them. It’s fair to say that “[l]ay people—and, for that matter, more than a few lawyers and judges—have more misunderstandings about the nature and role of precedents than about any other aspect of legal reasoning.” So let’s start at the very beginning.

  Judicial precedents are one of the two main sources of law in Anglo-American legal systems. Constitutions and statutes make up the other. Traditionally, statutes and precedents were considered to be very different types of law. Statutes have always been thought of as “written law.” Because they are written, their text tends to be analyzed very closely.

  Precedents contained in judicial opinions have traditionally been considered “unwritten law” because long ago judges simply read or announced their decisions from the bench, without writing them down. In fact, some English judges still do that.

  It used to be widely thought—until about the end of the nineteenth century—that judicial precedents were merely evidence of the law, as opposed to a source of it. No serious legal thinker now believes this. Today, precedents are understood to make up part of the law.

  Because all American appellate judges produce written opinions today, few commentators now refer to case law as unwritten law. Yet although judicial opinions are now written, reading case law differs fundamentally from reading statutes. Judges often say that they construe or interpret a statute, which means they try to determine the meaning of its language. By contrast, judges and lawyers often say that they analyze a judicial precedent. Although analyzing an opinion involves delving into the judge’s words, you must go beyond the judge’s words—which in themselves are of no great significance, as opposed to what they denote. You must also understand the opinion’s legal background, the facts of the case, and the relationship between those facts and the outcome.

  In other words, with case law you can’t just interpret its language; you must also engage in legal reasoning to find what we call the case’s holding—the rule or principle necessary to justify or explain the outcome. When lawyers and judges analyze a precedent, they’re usually trying to determine just what its holding is. They’re also trying to gauge how broadly or narrowly the holding sweeps—that is, how it will apply to future cases that present a similar issue but with different facts.

  You begin the task of analyzing a precedent with the thought in mind that readers—yourself included—may find its meaning uncertain. Opinion writing isn’t an exact science or a precise art. A judge might not reach a perfect understanding of the basis for the judgment. And even a judge who clearly grasps that basis might not be able to articulate it in ways that others will understand. That’s why reading an opinion calls for careful thought and at times a tolerance for frustration. Different readers may come away from the same opinion with quite different versions of its meaning. And different meanings are even more likely to be found when different readers take various approaches to the analysis.

  Finding the right approach depends partly on your purpose. Are you arguing an appeal from the opinion? Urging a lower court that its decision is or isn’t controlled by a higher court’s decision? Relying on the opinion—or distinguishing it—before the court that delivered it? Planning a transaction and hoping to find a secure basis for the deal? Offering general advice to a client who needs to plan how to act despite a set of legal principles that are still developing? Sitting as a judge and weighing the opinion’s importance to your own decision? You may be looking for different things in each of these situations. At times a narrowly technical approach may be called for. Other occasions may demand a broader approach, one that relies more heavily on sensitivity, seasoned judgment, even intuition.

  Whatever your purpose, you’ll begin by trying to identify a holding that expresses a legal rule. Doing that requires you to master the facts and pay attention to the procedural context that frames the question. You might not need to go any further—the decision may reconfirm a well-settled proposition, or you may conclude that greater refinement is inappropriate for other reasons. But more often you’ll need to draw on sophisticated analytic tools and various doctrines related to understanding precedent.

  ENTRENCHED IDEAS

  Let’s consider some instances. Does major-league baseball engage in “interstate commerce” so that it must obey federal antitrust laws like other businesses operating across state lines? Should a farmer feel confident that he doesn’t “take” wildlife in violation of the Endangered Species Act when he plows a field, even if in the process he unintentionally disturbs birds that have settled there? You might think the answer to these questions is yes. Surely professional baseball is a form of commerce—an interstate one at that. And it may seem odd to think of a farmer’s “taking” wildlife by plowing a field. But in both cases your intuitions would be entir
ely wrong—legally speaking. And the reason they’re wrong has to do with the nature of judicial precedent.

  On behalf of the U.S. Supreme Court, Justice Oliver Wendell Holmes wrote nearly a century ago that “giving exhibitions of baseball” doesn’t involve interstate commerce. In the years since then, the Supreme Court has reconsidered that decision, even admitting doubts about its soundness, but has adhered to it all the same. As for our farmer, the Court has more recently upheld regulations interpreting the statutory term take to apply to him. This despite the intuition that “taking” requires an act aimed at killing or capturing wildlife, an intuition that one dissenting judge expressed this way: “[I]f I were intent on taking a rabbit, a squirrel, or a deer, as the term ‘take’ is used in common English parlance, I would go forth with my dogs or my guns or my snares and proceed to ‘harass,…pursue, hunt, shoot, wound, kill, trap, capture, or collect’ one of the target species.”

  A judicial precedent does its most strenuous work when a later court thinks it’s wrong. Let’s assume it’s pretty obvious that “exhibitions of baseball” do involve interstate commerce. If we lacked a system of precedent, courts faced with the issue would have to decide it on the merits in every case, and presumably they would get the outcome right more often than not. But in a system respectful of precedent, if an authoritative court holds that baseball isn’t engaged in interstate commerce, later courts may be obliged to get the answer wrong in every case that follows. The power of precedent includes, then, the power to enshrine wrong decisions.

  It’s this very aspect of precedent that has proved such a rich source of material for the satirist. Take Jeremy Bentham, who called the art of judicial decisionmaking “the art of being methodically ignorant of what everybody knows.” Or the inimitable Jonathan Swift: “It is a maxim among these lawyers that whatever hath been done before may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind.” Bentham and Swift were describing precedent at its worst; at its best it amounts to a prudent guide for future decisions.

  The legal doctrine commanding deference to precedent derives its shorthand Latin name, stare decisis, from the maxim stare decisis et non quieta movere—“to stand by things decided and not disturb settled points.” Under stare decisis, in short, a court must either follow or distinguish the controlling decisions of its predecessor court on a question of law. For stare decisis to apply, a decision must have been rendered by a majority of the voting judges of the hearing court; must involve an issue of law, not of fact; and usually must be in a published opinion. Most important, the court must have decided the issue for which the precedent is claimed; it cannot merely have discussed it in dictum, ignored it, or assumed the point without ruling on it.

  Despite the age of the Latin phrase, stare decisis isn’t well understood. To the contrary, the application of stare decisis remains remarkably uncertain. Perhaps that’s because it’s not so much a doctrine as a method. As Max Radin has explained, “As applied in the United States, the rule of stare decisis is a matter of technique. In whatever way courts reach their conclusion, they are expected to place the situation they are judging within the generalized class of some existing decision.”

  THE LEGAL BASIS FOR THE DOCTRINE

  The Constitution does not mention the doctrine of precedent or stare decisis. Sometimes courts (including the U.S. Supreme Court) refer to stare decisis as a mere “judicial policy.”

  But can that be right? Not infrequently the Supreme Court reaffirms debatable decisions on the ground that they warrant deference as precedent. But by what power might judges favor a mere policy of their own hand over what (they are convinced) the Constitution commands or the legislature requires? And if precedent lacks constitutional grounding, might Congress have the power to compel courts to disregard it, to decide cases without reference to precedent? Could courts even choose to disregard precedents and abandon stare decisis?

  Perhaps some degree of respect for precedent may be required for federal courts to exercise the “judicial Power” endowed by Article III, or to comply with other constitutional commands like due process. By the time of the founding, William Blackstone reported that it was “an established rule” that English courts should “abide by former precedents.” In The Federalist, Alexander Hamilton emphasized that “[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.” And Justice Joseph Story maintained in his Commentaries on the Constitution that the “conclusive effect of judicial adjudications, was in the full view of the framers.”

  In fact, it was in the founding era that the modern concept crystallized. In his celebrated Commentaries on American Law, James Kent traced the doctrine of precedent to the formative years of American law: “The inviolability of precedents was…inculcated at a period which we have been accustomed to regard as the infancy of our law, with as much zeal and decision as at any subsequent period.” Today, the Supreme Court’s occasional references to stare decisis as a “judicial policy” rather than an “inexorable command” should be read as suggesting not that the doctrine lacks constitutional provenance but that the doctrine doesn’t demand obedience to precedent without exception. It leaves room for courts to distinguish and overrule. But even if that’s true, other intriguing questions remain—not least how much respect for precedent the Constitution requires or, put differently, how far courts may go in distinguishing and overruling precedent consistently with the Constitution or in declaring what counts as precedent and what doesn’t.

  THE PRACTICAL JUSTIFICATIONS FOR THE DOCTRINE

  Why do we bother with precedent? How is it that a system devoted in part to preserving wrong decisions has proved so durable in Anglo-American law and come to be thought of by many as central to our conception of justice?

  Five discrete arguments are frequently advanced here. Some depend on the consequences associated with respecting precedent. Other arguments are rule based, grounded on the conviction that a just judicial system requires at least some degree of deference to precedent. And some suggest that it’s simply better than all the alternatives. Let’s consider each of the five practical arguments in defense of our system of precedent.

  First, the past can teach valuable lessons inherently worthy of our respect. Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges. Sometimes it is also said that past cases are worthy of consideration by virtue of the very fact that they are our past. Or to put it negatively, a judge who departs from a precedent without rationally distinguishing it is necessarily, though perhaps only implicitly, criticizing it. Hewing to past decisions isn’t just a matter of inertia. It’s also a matter of professional honor and fealty.

  Second, cases are decided one at a time, and rules often take shape only slowly and from the accumulation of case-specific decisions pointing in the same direction. Our system deals with questions of law by increment, by degree, and on specific facts litigated from the bottom up. This system allows for a greater degree of fine-tuning and refinement—and constant improvement.

  Third, efficiency benefits are often claimed for precedent. Just as citizens benefit from having some idea what law will apply to their cases, so too courts, litigants, and the public at large gain something from a system that doesn’t require each case to be litigated anew and instead allows resort to rules already at hand. As Justice Benjamin Cardozo put it: “[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.”

  Fourth, by seeking to ensure some consistency in outcomes among decisionmakers, the doctrine of p
recedent may simultaneously promote respect for the judiciary as a neutral source. In this way, the doctrine might be thought to be thoroughly utilitarian.

  Fifth, a respect for precedent is said to advance notice and reliance interests. To a society aspiring to live under the rule of law, it’s no small thing to ensure that citizens can determine in advance what the law will require of them and have the chance to conform their conduct to it.

  In this enterprise, then, the right answer to a legal question is sometimes less important than a clear one. Does it matter more which side of the road the law says we should drive on, or that everyone follows the same rule? To facilitate social coordination, the answer we choose may be less important than that an answer simply be chosen and be clear. A system of precedent—the promise that future cases will be decided as similar past cases were decided—helps ensure that people can know what the law will be when applied to them, their actions, and their enterprises. Productive social coordination stands strong on the basis of (relatively) ascertainable ground rules.