How Should a Future Progressive Court Treat Roberts Court Precedents?

In his guest post on this blog last week, Professor Sobkowski critiqued Jesse Wegman's New York Times op-ed discussing the "crisis in teaching constitutional law."  Wegman blasted the Roberts Court for issuing a series of highly partisan, poorly reasoned constitutional decisions.  The Supreme Court, Sobkowski responded, has always been political.  If anything, the Roberts Court today is merely following the lead of the Warren Court, which "embraced judicial supremacy" and took it upon itself to "refashion the Constitution to meet contemporary needs." 

Professor Dorf responded to Sobkowski by pointing out important ways in which the Roberts Court differs from its predecessors, including the Warren Court.  While acknowledging the legitimacy of Sobkowski's basic premise--values, after all, have always affected the Court's work--Dorf suggested that the Roberts Court also differs from earlier Courts in important respects.  For example, as John Hart Ely famously argued, much of the Warren Court's work was representation-reinforcing, trying to correct breakdowns in the political process. By contrast, Professor Dorf pointed out, some of the Roberts Court's most important decisions, such as Shelby County v. Holder and Rucho v. Common Cause, undermined rather than reinforced democratic structures.  (Relatedly, I would add that whereas the Warren Court was sensitive to the ways in which legal structures systematically disadvantaged racial minorities with lasting consequences, Roberts Court decisions like Shelby County and Students for Fair Admissions seem doggedly oblivious to the ways past and present racism shape our society.) 

Moreover, Professor Dorf continued, the Roberts Court differs from the Warren Court in at least two other important respects.  First, conservatives on the Roberts Court today claim to be faithful textualists and originalists, but their asserted methodological commitments merely obscure the extent to which values drive their decision making.  Second, the conservatives on the Roberts Court were appointed by Republican presidents (following Federalist Society guidance) to achieve particular ideological objectives.  By contrast, the Justices on the Warren Court may have tried to shape the law to reflect their own normative preferences, but they were usually not doing the bidding of the party whose president appointed them. 

Professors Sobkowski's and Dorf's excellent contributions raise related questions of how future Courts might respond to the Roberts Court.  While it is unlikely Democrats will  recapture the Supreme Court anytime soon, it's always possible that unexpected vacancies could shift the Court's composition.  Even if the Court remains steadfastly conservative, though, some consideration of how a hypothetical, future, left-leaning Court might treat Roberts Court precedents can shed light on what, if anything, is unusual about today's Court.  

Needless to say, should the Court's composition tilt left, progressives would have a long wish-list of conservative precedents they would like to overturn or, at least, tweak.  One could write volumes on these, but, painting with a broad brush, how should a future liberal Court think about precedent generally, especially precedent from the Roberts Court?  

Let's consider some possible approaches on a spectrum from most respectful of precedent to least respectful. 

One caveat.  In reality, individual Justices would decide for themselves how strongly to weigh past precedent.  To that extent, "the Court" as an entity does not make a collective decision about how it will approach precedent generally.  Nevertheless, this thought experiment highlights the different ways Justices might think about these issues, which in turn would likely shape how the Court as an institution would deal with them.  (For a far more thorough treatment of precedent, see Mike Gerhardt's superb book.)

Option One: Faithfully Apply All Precedent

The first option would be for a future Court simply to follow all earlier precedents, no matter how strenuously the new Justices might disagree with them.  Stare decisis, after all, is an important legal value, and judges' role in our system is to apply the law, not to make it.  Moreover, if critics are correct that the Roberts Court has not sufficiently respected precedent, should future Justices really compound the error by ignoring prior decisions they don't like?

Of course, it's highly unlikely a future liberal Court would proceed this way. While different Justices (and, thus, different Courts) have their own thresholds for overturning precedent, it's impossible to imagine that five Justices would be so blindly devoted to precedent that they would vote to follow it, no matter how wrong they consider it.  That certainly hasn't been the Roberts Court's approach, and we can't expect it to be future Courts' approach either.  It may be especially unrealistic to expect unwavering adherence to precedent in our current era where the judicial appointments process is so politicized.  Given that both parties vet potential judicial candidates for views that fit the party's ideological preferences, it seems inconceivable that a future Court would respect all precedent it inherited.  

Nor should it.  Even jurists most committed to precedent usually acknowledge that the Court properly overruled Plessy.  Many would also say that West Coast Hotel properly overruled Lochner.  Even though judges and commentators disagree about which cases are "wrong," most agree that if a decision is wrong enough, the Court ought not follow it. 

Option Two: Faithfully Apply Most Roberts Court Precedent

Option One is inconceivable, but a more plausible variation would be to follow prior precedents, except those that are "egregiously wrong."  Justice Alito announced this standard in his Dobbs opinion overruling Roe v. Wade, and while the standard is hopelessly subjective, its basic premise has some appeal.  Courts, under this approach, should follow earlier decisions, including earlier decisions they believe were incorrect, unless those decisions are, like, really, really, really wrong.  (That wasn't Justice Alito's exact formulation, but it seems to be how he explains it in Dobbs.) 

The devil, of course, is in the details, and we all have our own lists about which cases qualify as "egregiously wrong."  The point, though, is that under this approach, future Courts would treat precedent with a presumption of legitimacy, recognizing that this presumption (like all presumptions) can be overcome.  

Option Three: Faithfully Apply Some Roberts Court Precedent

Option Three is basically a variation of Option Two but is less respectful of precedent.  Under this approach, Justices would be willing to overrule cases they consider "pretty wrong, even if not egregiously wrong." 

Option Three is a middle ground position.  One virtue of this approach is that Justices presumably would be more likely to uphold precedent they might not agree with, thus adding some predictability to constitutional law.  They would only overturn the "really bad" decisions, not the "kind of bad" ones.  

Another potential benefit of this approach is that it might encourage more honest judicial opinions because the standard for overturning past cases wouldn't be quite as high.  There are certainly powerful critiques that can be made of Roe, but Justice Alito's discussion of stare decisis in Dobbs was weak.  Alito, for instance, discounted women's reliance interest in Roe because he said it was empirically difficult to assess "the effect of the abortion right on society and in particular on the lives of women."  As I've argued here before, the Court's reasoning appears to be "if we can't empirically measure it, then it doesn't count."  This argument casts aside the interests of the group that seeks to exercise the right in question without giving fair hearing to the importance of that right to members of that group.  Whatever else might be said for and against the Dobbs opinion, this argument doesn't even pass the laugh test.  By lowering the standard for overturning earlier cases, Option Three would give the Justices more flexibility to discard precedents they don't like without having to go through the charade of trying to explain away strong arguments on the opposite side of the ledger (such as women's reliance interests in the right to abortion).  Following this approach, future Courts could acknowledge that an earlier Roberts Court decision had some legal merit but still overrule it because, on balance, they believed the arguments on the other side were substantially stronger. 

Option Four: Treat Roberts Court Precedent That Changed the Law as Inherently Suspect

Here's where things get interesting.  Whereas Options Two and Three proceed from the assumption that the Supreme Court should follow its precedents much or most of the time, Option Four treats the Roberts Court as sui generis.  This approach implicitly accepts Wegman's critique.  It then builds on that critique to assert that because the Roberts Court has been so aggressive in pushing the law in new directions, future Courts should basically discount the current Court's work product, at least where the Roberts Court departed from past decisions.  Proponents of this approach might point to the numerous areas where the Roberts Court has aggressively pushed the law in new directions: abortion, affirmative action, guns, free exercise, Establishment Clause, the major questions doctrine, the President's removal power, the ability for federal courts to enjoin unconstitutional state laws, actions against federal officers, and so on and so on.  (In some of these areas, the Roberts Court built upon its own decisions, but in all of them, the law looks quite different than it did before John Roberts joined the Court in 2005.)

Cases decided before the Roberts Court would still deserve a strong presumption of correctness.  Likewise, Roberts Court decisions that honestly applied older precedent would deserve the full weight of precedent.  However, this approach would decline to give any deference to Roberts Court decisions that changed the law on the theory that doing so would legitimize the illegitimate.  (This approach would give no precedential weight to shadow docket decisions, such as those that changed the law in the free exercise realm.  As Steve Vladeck's superb recent book argues, even if such doctrinal changes were substantively defensible, it is illegitimate to change important constitutional doctrine through terse shadow docket rulings.)

An obvious problem with Option Four is that it would openly concede that the law is about power, and whoever controls the Court controls the law.  Professor Segall would likely celebrate such candor, but there may be some social utility in the illusion of the rule of law.  Were a future Court to announce that it was not following Roberts Court decisions because it deemed the Roberts Court as excessively ideological or partisan, it would be inviting future Courts to treat its decisions the same way.  The public's respect for the Court is already historically low; Option Four could push it far lower.

The wisdom of Option Four hinges, to some extent, on one's view of the Roberts Court.  Certainly its defenders would insist that everything is above board, and that it would be lawless to discard its decisions just because you don't like them.  Critics (including me) point out that the Court's ostensible methodological commitments are inconsistently applied and easily manipulated, suggesting that some of the Justices' odes to textualism and originalism conceal results-oriented decision making. The critics also argue that the Court has changed the law very dramatically and very quickly and that wiser courts move more incrementally.  (For a very thoughtful discussion about whether it is fair to critique the current Court for changing "too much, too quickly," see Andy Coan's recent piece.)  

The conservative Justices themselves take umbrage at these sorts of attacks, but they must realize when they overrule or steer around precedents they don't like that some future Court might someday do the same to their opinions.  Perhaps these Justices don't worry too much about these issues because they think they'll likely continue to control the Court for the foreseeable future.  They're probably right.  But the more the Court changes now, the more license future Justices will have to do the same. 

Option Five: Treat Everything as Fair Game

Option Five is the least respectful of precedent because it takes Option Four's undeferential approach to precedent and applies it also to older, pre-Roberts Court decisions.  Unlike Option Four, which only permits future Courts to ignore Roberts Court decisions that changed the law, this approach would allow all Supreme Court precedents to be revisited.  (A more comprehensive study of precedent might conceive of two sliding scales: the "degree of wrongness" required for a Court to abandon an earlier precedent and the age of that precedent.  My focus here has primarily been on the "degree of wrongness," but, as Option Five suggests, an aggressive challenge to stare decisis might be willing to overturn not only recent but also older precedents that were sufficiently wrong.)

Progressives' justification for Option Five would be simply that the Roberts Court's own disrespect for precedent flung open the doors to casting aside all earlier decisions they dislike, including those that pre-dated the Roberts Court.  For example, progressives might want to reconsider Rehnquist-era state sovereign immunity decisions like Seminole Tribe v. Florida and Alden v. Maine.  Perhaps they might also want to revisit much older precedents, such as The Civil Rights Cases and Hans v. Louisiana.   

In defense of Option Five, some argue that this has more or less been the Supreme Court's de facto approach.  Certainly, the current Court's reliance on history-and-tradition methodology invites reliance on historical evidence to displace precedent, whether recent or longstanding.  And, as Professor Sobkowski pointed out, the Warren Court itself created a lot of new law.  On this view, perhaps no precedent is sacred.  

The same criticisms of Option Four attach here, except more so.  If everything is fair game, is there really such thing any more as the rule of law? 

Variation on Options 2-5: Pretend to Follow Precedent

One final variation on these options bears mention.  Sometimes the Court purports to follow precedent but limits, extends, distinguishes, or distorts it.  Critics sometimes accuse the current Court of doing just this.  The Court's recent major questions doctrine cases are a good example.  The Court claims to be doing simply what it has done in earlier cases (like FDA v. Brown & Williamson), but commentators (myself included) have argued that the Court in fact has significantly expanded the major questions doctrine into a much more aggressive judicial tool to invalidate agency policies it doesn't like. To give another example of the Court only pretending to follow precedent, in Students for Fair Admissions, the Court purported to follow Grutter v. Bollinger, though in reality the new decision effectively overruled the Grutter framework. 

For our purposes here, these variations are important because often when the Court departs from precedent, it doesn't admit to it.   Following this model, future Justices could take an aggressive approach towards revisiting old precedent while claiming they were doing no such thing.  In their mind, this approach would accomplish most of their goals, while potentially mitigating the fallout that might accompany decisions explicitly overruling precedent. 

Final Thoughts                                      

So, in the admittedly unlikely event progressives do regain control of the Court soon, which of these general approaches should they take?  

In one sense, the Justices likely wouldn't think of themselves as taking any of them. Judicial nominees know that they should pay lip service during their confirmation hearings to the importance of following precedent (and calling balls and strikes).  Even once on the Court, most Justices won't announce a definitive approach to stare decisisTo the contrary, judges take cases as they come before them, deciding one case at a time.  It is usually in retrospect that we can identify a particular approach to precedent. 

And yet, judges must bring to each case a general inclination with regards to precedent.  This inclination may differ depending on the issue, but over time, observers can try to detect patterns, just as Wegman did in his op-ed.  On this view, even if new Justices didn't explicitly have a position on precedent, they nevertheless would have to approach cases with a general inclination either to follow or abandon earlier decisions. 

My own inclination would be to take something of a middle ground position.  Given the Roberts Court's own numerous departures from precedent, slavish devotion to its precedents is undeserved.  At the same time, though, if a fair critique of the Roberts Court is not just the substance of its decisions but its willingness to change the law, then it would be hypocritical to declare that everything is fair game when the tables are turned.  Whatever the rule of law entails, it must include some devotion to venerable principles that we ourselves might consider suspect.  Every new Court ought not decide every issue anew.  Nor should every new Court steer the law aggressively towards its own preferences.  

And yet the Roberts Court often seems to be doing just that.  Professor Sobkowski compared the current Court to the Warren Court, but perhaps a more fruitful comparison would be to its immediate predecessor, the Rehnquist Court.  While progressives complained about the Rehnquist Court, too, it was, especially in comparison to its successor, a centrist Court that tried to find middle ground on a variety of hot-button issues, such as religion, affirmative action, and abortion.  Of course, there were conservative and progressive Justices on that Court who wanted to push the law further in their preferred directions, but the Court usually landed upon a compromise position held by some combination of moderates like Justices O'Connor, Kennedy, Souter, and Breyer.  While Justices like O'Connor and Breyer might have been more devoted to pragmatism than stare decisis, they nevertheless usually made sure not to veer too dramatically from what earlier Courts had said.  By contrast, at least in cases involving prominent issues of public policy, the current Court seems to operate under Option Four or Five a lot of the time (treating with suspicion progressive precedents from the Warren Court to the present era).  Just about everything, it appears, is fair game.  For better or worse, that approach might mean that some day the Roberts Court's own decisions will be fair game, too.