Mourning The 20th Anniversary of the Roberts Court Part III: The Rule of Law or The Rule of People?
In Marbury v. Madison, one of the most important cases ever decided by the Supreme Court, Chief Justice John Marshall made at least three major mistakes. He decided a case in which he and his brother played a central role in the facts; he made up a statute that didn't exist so that he could solidify for the court the power of judicial review; and he decided the merits of the case before he decided jurisdiction, which he found was lacking. Constitutional law was not off to a great start.
But he also wrote one of the most important passages in American jurisprudence, which we should all accept as an important aspiration:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection.... It is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.... The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.
Obviously, courts cannot remedy every legal injury whether due to jurisdictional concerns, or perhaps a lack of an explicit statutory or constitutional remedy, or simply a decision that the case would be too controversial for a court to decide. But as a general rule, the idea/aspiration that every legal right that is violated should have a remedy is well accepted by most constitutional law scholars, as is the goal of living in a country governed more by the rule of law than the rule of people. Generally speaking, similar cases should be treated ... well similarly.
In the context of courts, the idea of the rule of law depends substantially on precedent. What distinguishes judges from legislators, even in systems where judges do not have life tenure, is that judges are supposed to significantly defer to prior cases decided by the same court (horizontal precedent) and abide by the decisions of higher courts (vertical precedent). Legislators, on the other hand, are free to decide issues anew whenever they deem it necessary.
If the Supreme Court were to announce tomorrow that it would no longer give its own precedent any value when deciding future cases, people would readily accept that this is not an institution that acts like a court of law. Of course, there are times when cases should be overturned, and no one argues that following horizontal precedent is a strict rule with no exceptions. But where precedent plays only a minor role in a judicial body's deliberations, the goal of the rule of law is severely compromised. Or, as retired Judge Richard Posner once said, and as I have frequently quoted on this blog and elsewhere, "if changing judges changes law, it is not even clear what law is."
Comparing different Supreme Court eras on the basis of departures from precedent cannot be done solely through empirical data because the importance of overruled cases is in the eye of the beholder. Reversing five unimportant cases might have a lesser effect than the overruling of two major cases, and those assessments are inevitably subjective. Nevertheless, just as the statement Shaquille O'Neil is tall is subjective but obviously right (he is over seven feet tall), some subjective statements of opinion are just so obvious that if one disagrees with them, there is no point having a conversation about the subject. If I say that an average basketball player, say Tree Rollins, who played for the Atlanta Hawks in the 1980's, was, in my opinion as good as Michael Jordan, I am simply stating an opinion. But we cannot have an intelligent discussion about the subject if that is the opinion that I hold. We might as well move on.
The Roberts Court has overruled so many important precedents in its twenty years that any opinion that it takes the doctrine seriously is uncommonly silly. Of course, it is my view that the Supreme Court over time does not take precedent seriously enough to meet minimum rule-of-law requirements, and I wrote an entire book in 2012 making that argument. But whether I am right or wrong about the historical point, it is also my view that anyone who examines the last twenty years should come to the conclusion that the Roberts Court simply does not take precedent seriously when it comes to important constitutional law doctrines. Some of the overwhelming data are compiled in the list below, and this list only includes constitutional and administrative law cases. These reversals have dramatically changed our country in two short decades, and it is a partial list.
Pre-Roberts Court: Abortion was a right pre-viability, and restrictions on that right as to pregnant adults could not pose an undue burden on the right.
Post-Roberts Court: The Constitution provides no special protection at all to adults seeking abortions.
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Pre-Roberts Court: The Second Amendment only applied to weapons used by the militia and, this was a bit fuzzy, but probably only when used for militia purposes.
Post-Roberts Court: The Second Amendment applies to all arms in common use and is not limited to militia use but also applies to personal self-defense and hunting.
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Pre-Roberts Court: Colleges and universities could take race into account when making admissions decisions as long as they did so pursuant to factors articulated by the Court
Post-Roberts Cout: Colleges and Universities may not take race into account at all in their admissions decisions.
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Pre-Roberts Court: The First Amendment did not prohibit states from requiring their workers who received benefits as part of a collective bargaining unit to pay unions for the portions of their dues reasonably allocable to such services, even if the employees didn't join the relevant union.
Post-Roberts Court: The First Amendment prohibits states from making their own workers pay union dues if they decide not to join the union. Union dues equal speech.
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Pre-Roberts Court: The free exercise clause did not protect individuals (or companies) at all from substantial burdens on their religious exercise caused by generally applicable laws.
Post-Roberts Court:: The free exercise clause applies....well it is unclear, but it now provides so much protection that all that is left is for the Justices to expressly overturn the rule cited above. And, by the way, while the free exercise clause has been armed to the teeth, the Justices have effectively deleted the establishment clause from the first amendment.
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Pre-Roberts Court: Same-sex marriage is not a constitutional right.
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Pre-Roberts Court: Congress may require that corporate expenditures on elections be made through segregated funds.
Post-Roberts Court: Corporations have the same rights to make expenditures on elections as individuals. Money equals speech.
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Pre-Roberts Court: Federal Courts must defer to reasonable interpretations of statutes that are unclear or ambiguous.
Post-Roberts Court: Federal Courts do not have to defer to reasonable interpretations of statutes that are unclear or ambiguous.
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Pre-Roberts Court: There is no principle of equal state sovereignty limiting Congress' ability to treat different states differently when it comes to voting rights.
Post-Roberts Court: There is a strong principle of equal state sovereignty that severely limits Congress' ability to treat different states differently when it comes to voting rights.
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Pre-Roberts Court: States have no sovereign immunity in the courts of another state under the Constitution.
Post-Roberts Court: States have sovereign immunity in the courts of another state under the Constitution.
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Pre-Roberts Court: Congress can place "for cause" limitations on the President's ability to fire independent agency officials.
Post Roberts Court: With possibly one exception, Congress cannot place "for cause" limitations on the President's ability to fire independent agency officials.
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Pre-Roberts Court: When a defendant asserts the Sixth Amendment right to counsel at a court proceeding, the right cannot be waived for purposes of a police interrogation when the interrogation follows the request for counsel.