Monday, July 09, 2007

Is it Possible to Teach the Meaning of Precedent in the Era of the Roberts Court?

In an insightful article in the 1996 Michigan Law Review, Harvard law professor Carol Steiker argued that the Burger and Rehnquist Courts had made their peace with the liberal criminal procedure precedents of the Warren Court by maintaining their form and in some cases even extending them, but rendering them mostly toothless through a variety of procedural devices. (The article is Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich L Rev 2466 (1996), available at Hein, WestLaw and Lexis, but only by subscription). Here is Steiker's own summary of her thesis:
The Burger and Rehnquist Courts have not altered radically - and indeed, occasionally have bolstered - the Warren Court's constitutional norms regarding police practices. The edifice constructed by the Warren Court governing investigative techniques under the Fourth, Fifth, and Sixth Amendments remains surprisingly intact. Rather than redrawing in any drastic fashion the line between constitutional and unconstitutional police conduct, the Supreme Court has revolutionized the consequences of deeming conduct unconstitutional. This revolution has not taken the form of wholesale abolition of the Fourth Amendment's exclusionary rule, or the Fifth or Sixth Amendments' mandates of exclusion; rather, the Court has proliferated a variety of what I would term "inclusionary rules" - rules that permit the use at trial of admittedly unconstitutionally obtained evidence or that let stand criminal convictions based on such evidence. Examples of "inclusionary rules" are the doctrines regarding standing, the good-faith exception to the warrant requirement, the "fruit of the poisonous tree," impeachment, harmless error, and limitations on federal habeas review of criminal convictions.
I want to suggest that the emerging modus operandi of the Roberts Court will make the Burger and Rehnquist Courts look like pikers when it comes to below-the-radar counter-revolution. For one thing, the Roberts Court is not going to limit itself to criminal procedure or any discrete area of the law. For another, the Court has added a new technique: now the ascendant conservative majority does not even acknowledge that what it is doing is completely inconsistent with prior liberal precedents, thus at least requiring at least a new exception; rather, the new technique is simply to assert fidelity to the prior precedents and then rule the opposite way.

Here I want to register a parochial complaint against this particular brand of what is charitably called minimalism: It's going to make it hard to train new lawyers about what it means to reason from or even follow precedent. Suppose I gave students an exam question in which they were asked whether a federal statute banning partial-birth abortion was valid if it contained no health exception, or if federal campaign finance regulation were valid if it limited union- and corporate-funded speech that mentions specific candidates during an election period. Prior to this year's cases, the answers would obviously have been no and yes, respectively. If a student wrote that the existing precedents were wrong and cogently offered reasons for overruling them, then, whether or not I agreed with the student's bottom line, that would earn her a good grade (assuming I didn't set the case in a lower court), but if she gave the answers yes and no, respectively, as the Court did this past Term, while not arguing for overturning the earlier precedents, I would have to give her a very poor grade. Indeed, I wouldn't even ask such ridiculously easy exam questions because the most important skill students acquire in law school is the ability to distinguish hard from easy questions. An easy question does not permit students to show off their legal reasoning skills. In getting easy questions wrong, the Roberts Court makes it nearly impossible for us law teachers to demonstrate the difference between easy and hard questions.


Marty Lederman said...

Very interesting post, Mike. What are the causes of this new pseudo-fidelity? Most significant, of course, is that Roberts and Alito were required to pledge fealty to stare decisis repeatedly during their hearings.

But there's also the fact that they risk losing Kennedy's vote if they're candid about the overrulings. And it's not just them. In Hamdan and Rasul, for instance, Stevens presumably would have been more than happy to expressly overrule Eisentrager, Yamashita and Quirin -- part of his campaign (to which I am sympathetic) to resurrect what he sees as Justice Rutledge's better judgment. (See Craig Green's fine article.) But he did so only obliquely, or, more accurately, incompletely, relying on supposed statutory responses to those cases by the 1950 Congress and (in Rasul) by the 1867 Congress, whose intent in the habeas statute had finally been understood correctly in the interim Braden case, as JPS described it.

Cases such as Quirin and Eisentrager obviously still cause mischief and confusion -- as might McConnell and Carhart, if the Court were to shift, which is why Scalia is so intent on expressly overruling them -- and so JPS presumably would prefer to ditch them altogether. I assume he did not do so because there weren't five votes. And that the same factor largely explains the Carhart/McConnell examples.

md said...


If you are right that it will be increasingly difficult to distinguish 'hard' from 'easy' cases (at least with respect to those cases that reach the Supreme Court, though I suspect there may be a trickle down effect) might this spell a revivial of interest in the indeterminacy debate?

egarber said...

Mike, how would you classify Casey's undue burden standard, which inserts the state in various ways not allowed by Roe?

Could one say Casey is similar to Gonzales v. Cahart, in that it purports to validate Roe while weakening it?

My sense is that Roe was open-ended enough for refinement in this manner, while the health exception is more of a core holding.

Michael C. Dorf said...

Interesting comments all. If Marty is right about Kennedy (and I should add, if I am right, because I made the same claim on NPR last week --- that Kennedy finds the Roberts approach less "scary" than that of Scalia and Thomas --- then how do we account for the fact that Kennedy falls for such transparent trickery? Indeed, we must account for his own writing of such opinions, as in Gonzales v. Carhart. (Eric, I'd classify Casey somewhat differently. Although it's not clear why the Court was justified in overruling some post-Roe decisions in an opinion that sang the praises of stare decisis, at least the O'Connor/Kennedy/Souter opinion acknowledged that it was doing so.)

The attitudinalists would say the answer is clear: the Justices don't care about precedent and never did. But that doesn't explain what most of us see as an INCREASE in thinly camouflaged disregard for precedent. Perhaps nominal adherence to precedent has become more important in the last 15 years or so, for all Justices. But then we would need to know why that has happened. I have some tentative ideas but nothing remotely definitive.

Marty Lederman said...

Mike: I'm not sure it's that AMK "falls for such transparent trickery." It's that he -- and SOC, and Powell -- *favor* such a method, because it allows for much greater flexibility in the future. There is *some* cost to saying that you're overruling a landmark precedent (if only to the Justices' reputation for being umpire-like "interpreters" of the law) -- which is why it's harder to get five votes to do so. And that why Scalia and Thomas *want* to expressly overrule a slew of precedents now that they think they have the votes to do so -- because as long as Tinker and Stenberg and McConnell and Austin and Grutter are still officially "good law," it will be much easier for some hypothetical more liberal future Court (a boy can dream) to read them strongly and to make good on their promise than it would be if that more liberal Court had to "overrule" WRtL and Parents Involved and Morse and Hein.

Garth said...

pure politics.

it's the figleaf cover of respectability to say your rulings are consistent with prior law.

Bushs I and II have nominated justices that have a radically different vision of America, lifetime tenure and the full power of the US government to enforce its decisions.

it will be very interesting to see what happens the first time they go too far on a senstive issue.

if they had flatly overruled Roe, there would have been riots in the streets, marches, protests and, possibly, MSM coverage of the historical signifigance of moving backwards in our civil rights.

if the court backs some of Bush's wilder claims. i predict there will be massive protest.

the court's convervative members are way out of step with the times.

Benjam said...

two quick points:

first, if this is a true indication of his approach, roberts will be remembered as a clever politician and an inferior legal mind. for this reason and others, i think (hope) he will evolve.

second, how does this critique differ from the points scalia made in dissent in the seattle schools case? scalia's rebuke was harsh and seems to set the stage for mike's prediction that for now the interesting debates will be coming from inside the conservative camp.

Michael C. Dorf said...

Marty: I don't doubt that AMK wants to do what he's doing but I can't help thinking that he's deceiving himself rather than simply lying about precedent. Perhaps that's just because, at a personal level, I have respect for his integrity (even though I think he made some horrific judgments this past Term). I don't know Roberts or Alito well at all, but I also think that they're engaged in some self-deception as well, rather than simply lying about what the prior cases said and meant.

Kenji said...

Can't you just teach that these cases are wrongly or very poorly decided? Most professors I had didn't shy away from making such claims.

Benjam said...

i think the strangest thing is that AMK can have any opinion almost exactly the way he wants it. i understand there are transaction costs to writing an opinion and that there are other issues related to opinion assignment, but he is the swing voter on EVERY 5-4 case. that means he calls the shots. it seems to me that (a) he may still be adjusting to this hugely powerful role and (b) if not, then we are seeing AMK unleashed -- a TRUER form of the jurist then any of us knew before. only time will tell.

Jamison Colburn said...

I know Mike's original post was aimed at the other end of the Court, but it seems to me to have some resonance when applied to the Stevens-Souter-Ginsburg-Breyer bloc, too. The way they mangled the standing precedents (in part to get AMK, I am sure) in Mass v. EPA was a sight to behold. If you know your colleagues have crosshairs on your most cherished precedents, is that a reason to take their most cherished precedents less seriously?

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