Thanks for this valuable contribution to current conversations! The later graphs show us something valuable that I hadn't seen elsewhere. The number of laws and institutions affected by each overturned precedent would be a worthy investigation for some grad student who can dedicate the time.
I do wonder about how you characterize stare decisis. You refer to it as a doctrine of keeping bad decisions, as amounting to an admission that something is wrong, but you don't want to fix it. That's not the way I've seen the term applied elsewhere. Stare decisis, as far as I have seen, applies where a court (or the Court) might rule in a variety of ways, without believing that precedent is necessarily wrong, but the court keeps to prior precedent in order to be fair and maintain trust in the law.
For example, the bar for prosecution for incitement to violence is extremely high in the United States. This precedent originally protected the violence of the KKK, but when leftists later came before the Court for inflammatory speech, stare decisis saw to it they were treated the same.
A legal team might rely heavily on stare decisis arguments when they suspect the judges before them do not agree with a prior ruling and will not buy their other arguments, but I'm not aware that invocation of the principle necessarily indicates a belief that the prior decision was in error. Not unless a Court believes that any decision other than what they would make with no precedent is bad, at which point we're discussing sheer arrogance more than legal reasoning.
How we read these graphs depends on how we contextualize history. The Constitution was written by wealthy White men in order to support their own long-term interests, and the early court made sure it did so. The lack of overturned precedents in the early court isn't just a function of the country being young; the range of judicial philosophies appointed would also have consistency within the range of interests they were designed to defend.
By the mid-20th century, we finally had enough people who were not White men in the electorate to filter into the dispositions and hermeneutics of the Supreme Court, thus resulting in readings that favored the American populace in general, at least sometimes--which necessarily means overturning precedents of a Court that did not. With the Barrett Court, thanks to a partisan re-alignment that enables a Senate majority to reflect the interests of well-off White men even with a minority of votes, we have a Court poised to return power to the race, class, and gender of people whom the framers intended. Out with the old overturnings, in with the new!
I have no doubt that you read this history differently.
Incidentally, I finally migrated over to Substack once you updated your old blog after some time. I'll probably be commenting on older posts now and again.
Welcome back, Drea! The comment system over here is one of the two most compelling reasons I moved over to Substack. (The other is the footnotes.) It's so much easier to write them now, and hopefully you'll find them as comfy as I do. Pleasure having you back, in any event, and with a comment that will no doubt keep me typing for an hour!
On stare decisis: it's true that, in a case where all parties agree with the underlying precedent, stare decisis is followed -- but that's not because of the Value Of Stability In The Law, it's because everyone thinks the precedent *was correct* in how it explained the law. Why wouldn't they keep building on the firm foundations of a precedent they all agree with?
It is also true that, in many cases, one party to the case does *not* agree with the prior precedent, but argues that its position follows the precedent (or extends it, or is distinguished from it) anyway. This is also not because of the Value Of Stability In The Law per se, but rather because the side that disagrees with the precedent thinks they has a higher chance of winning the case if they avoid challenging the precedent. This may be because it's easier to convince judges of small things than big things, or it may be because lots of the judges have already endorsed the prior precedent in other decisions and clearly wouldn't be open to a broad attack. Again, stare decisis gets followed, but by accident, not as a Solemn Principle Of Law.
But, sometimes, petitioners do challenge precedents they disagree with. (They obviously never challenge precedents they agree with.) Now, finally, it falls to the Court to consider the precedent.
When a precedent is challenged, the Court may consider the precedent carefully and then say, "Yep, that precedent was correct. We stand by it because it was correct." Again, precedent gets followed, but not because of The Value Of Stability In The Law. In these cases, the judges are saying that, even if the precedent didn't exist and was being decided for the first time in the current case, they'd still have to rule exactly the same way, not because of the precedent, but because of the law.
Stare decisis principles get invoked in one and only one type of case -- the only kind of case that's left: a case where one of the litigants directly challenge the precedent, and the judges agree that the challenge (at the very least) has some good, persuasive logic behind it. Once they've admitted that, *then* they weigh The Value Of Stability In The Law against the value of deciding the case correctly. That's the only situation where stare decisis becomes relevant to the resolution of a case. Every other kind of case gets disposed of before reaching this point.
Obviously, when singing the praises of stare decisis, nobody describes it the way I did in this piece, as a choice between consciously doing injustice to a concrete person in the courtroom and doing harm to the abstract principle of stable legal rules. But, by definition, stare decisis can't do meaningful any work resolving a case *unless* the underlying precedent is in serious doubt. That's why some people hate it so much.
I'm not one of those people. I think stare decisis has value in several situations: in areas of deep, genuine ambiguity, where you can't really say that your interpretation of the law is clearly better than the precedent's interpretation, it doesn't really do any good to overthrow the old rule and impose a new one (with just as little justification). Meanwhile, in areas where The People have easy recourse to change a precedent -- for example, by revising a statute to eliminate an ambiguity that led to the court case that created the precedent -- I think there's at least some value in not updumping apple carts that Congress may not have *intended*, but which it has come to *rely upon* nonetheless.
But I think it's worth acknowledging that, when you follow a court's prior decision on how a particular statute should be applied in a certain kind of court case, you either (a) agree with that prior decision, in which case you're not relying on stare decisis at all, or (b) disagree with that prior decision, but have decided to close the doors of the court to a petitioner who (you think) has a valid legal claim, telling him to go petition Congress instead. It's worth it, but the cost is not cheap.
(Sidebar: Overattention to precedent has another risk, too, not mentioned in this article: it tends to allow the most reckless jurist to define the law for all time. Although I agree with Gorsuch's Bostock opinion, I think Josh Blackman's general observations were correct in his famous article, "Stare Decisis is an Old Latin Phrase that Means 'Let the Decisions of the Warren Court Stand'". https://reason.com/volokh/2020/07/01/stare-decisis-is-an-old-latin-phrase-that-means-let-the-decisions-of-the-warren-court-stand/ And he quotes my nemesis, Adrian Vermeuele, so I WANT to disagree!)
This is why I think it would be fairly silly for anyone to scream at the Post-Lochner and Warren Courts for overturning a bunch of precedents. They were correct to follow the Constitution as *they* understood it, not the Constitution as William Howard Taft understood it. That's the Oath justices swear! (I have a lot of beefs with the Warren Court, to be sure! But this isn't one of them. And the post-Lochner guys did the Constitution a great service by killing Lochner.)
However, it would be even *sillier* for someone to scream at the Barrett or Kennedy Courts for desecrating stare decisis, while giving the Warren and Burger Courts a pass. Yet we see people doing exactly that all the time at the moment (or at least I do). Elie Mystal had a piece in The Nation this week that did just this, and he earns way more money than I do, so I don't think I'm nutpicking when I single out this critique for a slightly deeper analysis. If you're for stare decisis for judges you like, but against stare decisis for judges you don't like as much, then you're not for stare decisis at all! You're just pro-judges-you-like. (And that's fine! Let's just be honest about that, Mr. Mystal!)
Anyway, I think I answered your... question? comment? rejoinder?... about what stare decisis actually *is*.
"How we read these graphs depends on how we contextualize history."
One of the fun things about data is indeed that it can usually be interpreted in a number of different ways. Data can narrow the possibility space, but it can't draw conclusions by itself!
"The Constitution was written by wealthy White men in order to support their own long-term interests, and the early court made sure it did so."
I do pretty fundamentally disagree with Charles-Beardism as a matter of history. I just don't think this was either the intention or the effect of the Founding Fathers, and I think history quite amply disproves his thesis. If you're looking for a fun read that deals respectfully but not particularly intensely with Beard's thesis (among other things), I recently finished (and really enjoyed) Mr. Akhil Amar's "America's Constitution: A Biography," which acknowledges the strengths of Beard's thesis while also pointing out a whole lot of things Beard left out.
But, for those who agree with his thesis to this day, yes! I would expect such people to read things very differently!
"By the mid-20th century, we finally had enough people who were not White men in the electorate to filter into the dispositions and hermeneutics of the Supreme Court, thus resulting in readings that favored the American populace in general"
Even assuming for the sake of argument that Charles Beardism is correct, this is a pretty gosh-darn-dang generous interpretation of the mid-century Supreme Court's decisions. Many of their decisions were profoundly unpopular across *all* demographics of American society -- except for a very small coterie of progressive elites.
After all, had the Supreme Court's mid-century decisions enjoyed broad popular support, *they would have been voted into law* after the 19th Amendment, or at the very least after the Civil Rights Act of 1964. But they weren't, so, instead, (to name two examples off the top of my head) the Supreme Court imposed one of the most radical abortion regimes on the face of Planet Earth and abolished the death penalty for four years, among other radical and quite frankly lawless, tyrannical acts. (I say this as someone who agrees with abolishing the death penalty!) Their misbehavior inspired a strong democratic *backlash* against them in the 1980s, which makes it even more tenuous to argue that they were serving the interest of the People. (Say what you will about the importance of the national popular vote, but Reagan won it by 18 points in '84.)
At bottom, that's the fundamental problem with the argument that today's broader sense of democracy justifies judicial activism. The idea is that we should keep this putatively undemocratic elitist Constitution, but fix its democratic deficiencies... by entrusting it to a bunch of unelected, unaccountable elites from Yale and Harvard Law? People who are even *less* bound by the Will of the People than Madison and Adams? This seems self-contradictory. Instead, if the premise is true, and the Constitution's founding really is fatally compromised by the narrowness of the franchise under which it was ratified, then the conclusion must be that the Constitution should be abrogated and replaced by a new document, one that can be ratified by ~80% of Americans today, under today's suffrage rules. Anything less seems like a parlor trick.
I think you and I are saying similar things about stare decisis. You emphasize more than I do that it only comes up when you consider the precedent worth overturning, whereas I'm seeing it as more baked into judicial reasoning generally, but the bottom line is the same: you should be mindful of wanting it to apply to precedents you like but not to those you don't.
The current Court may or may not ultimately overturn more precedents than other recent eras, but it does seem more likely to overturn precedents that a majority of Americans want to keep. Confidence in the Court is at historic lows. Antimajoritarian aspects of the Senate have enabled a supermajority on the Court of a judicial philosophy espoused by a minority of Americans. To you, this is the best Court in decades. Most Americans disagree. So you're going to have more uproar than when overturned precedent agrees with American public opinion.
This Court is also doing a fair bit of rendering precedents meaningless without overtly overturning them. I get your elation at overturning Roe v. Wade. What boggles me is how you can look at Egbert v. Boule, which eviscerates without overturning Givens, and think "best Court in decades"--other than with the comfort that you are not the sort of person whom federal officers are likely to assault.
Your response about electoral outcomes raises the distinction between rulings that favor, protect, or serve all Americans versus rulings that are popular. If the Court rules that you cannot mistreat or murder a subgroup of people, then this decision serves all Americans, even if a majority of Americans think it's fine to murder or mistreat them and don't like being told otherwise. From a pro-life perspective, Republicans are about to face electoral backlash for exactly this reason. So we can't argue that a decision would be passed into law if it really did favor all Americans, in the sense of protecting the fundamental rights of all persons. Whenever the Court defends the rights of a disempowered minority, who definitionally have relative disadvantage in passing laws, exactly the opposite would be the case.
I don't think we need to get into the details of Beard's arguments about bonds and whatnot, nor do I think the founders were generally thinking in so narrow a sense. Rather, the Constitution was drafted and ratified by a sliver of the population, and that sliver wrote a document both with intended and unintended bias in their favor. I'm not sure how you look at American history, or America today, and see disproof rather than proof of this thesis, but arguing that is a deep rabbit hole. Instead, in order to claim the founders did *not* privilege their own interests, you need to go against the reasoning behind representative government in general. Different groups have different interests and must have representation in order to reach collective agreements. Most Americans weren't at the table. Pretending that any resulting document would represent all Americans is magical thinking, or at any rate, not thinking aligned with a republic.
I looked up that article by Elie Mystal, and here's what I found:
"we are living in something akin to a juristocracy: a system in which unelected judges with lifetime appointments rule us from on high. Arguably, we’ve been trending in that direction for decades, and perhaps the flaw goes all the way back to Marbury v. Madison and the court’s 1803 power grab."
That doesn't sound like a call for judicial activism as the ideal! It actually sounds more like what you wrote as a preamble to your proposed Constitutional amendments, with the goal of returning functionality to the legislature. It isn't that progressives like judicial activism. Instead, people who don't look like you hope that the Court might rule in their favor, because persuading nine unelected lawyers is still less of a long shot than getting a system built by and for an elite to do anything other than what it was designed to.
All this leads us to a surprisingly similar place: our legislature is broken, our laws are getting made by bureaucrats and judges, and we need a new Constitution or significant amendments approved by a high majority of the people to avoid tyranny, civil war, or dissolution of the United States. Anything else, as you put it, is a parlor trick.
Well, this is admittedly from years ago, but you allude to this article in the newest article, so...
"The Taney Court (1836-1864): Best known for the foul Dred Scott decision, and deservedly so."
Honestly, I question it being deservedly so. The Taney Court lasted for 28 years. Is it really fair to say that one decision, even one like Dred Scott, should be the one thing most people can name about it? I cannot think of any other court that is so identified with one particular case in particular; even Marbury v. Madison doesn't seem to dominate the idea of the Marshall Court like Dred Scott does for the Taney Court.
Then again, I can't off the top of my head say much they did other than that. I can point to Prigg v. Pennsylvania and Strader v. Graham, but those are mostly notable because of their connection to Dred Scott (Prigg is remembered because it's accused of "setting up" Dred Scott, and Strader is remembered because critics of Dred Scott say they could've decided Dred Scott narrowly and with little controversy had they simply affirmed some dicta from Strader). All that comes to mind offhand that isn't notable because of Dred Scott is The Prize Cases (allowing Lincoln to blockade ports early in the Civil War before there was a formal declaration of war), and while The Prize Cases was very important at the time, the fact it was about those very specific circumstances means they matter little for cases going forward and so it's not that remembered.
Maybe the reason for Dred Scott gobbling up all the focus is therefore the fact they didn't do all that much notable other than it. All the important groundwork had already been laid by Harlan, and there was less important things to rule on. After all, the federal government was smaller so there were fewer laws to litigate over, and there was not yet any Fourteenth Amendment (which is the gift that keeps on giving when it comes to creating constitutional litigation).
“I think the Warren and Burger courts should be counted together, but some people have the strange idea that Chief Justice Burger or his Court were conservative, so I must count them separately, or those people will think I’m pulling a fast one.”
I don't think many say Burger or the court was conservative, but there are plenty who think it was more conservative than the Warren Court. Granted, it was also the court that gave us Roe v. Wade, which was probably more extreme than anything out of the Warren Court. Still, I remember reading an article where someone was arguing that the belief that the Burger Court was particularly liberal comes largely from Roe v. Wade, and that it gave a misleading impression of the Burger Court as a whole. (Burger himself did later turn against Roe)
Re: Taney: I basically had this entire internal monologue with myself when I wrote the article originally.
An early draft of this passage read, "Chief Justice Roger Taney has a bad rap. And he completely deserves it. Not even 28 years of exemplary Supreme Court service could justify the foul Dred Scott decision… and Taney’s prior and subsequent service was not exemplary! He inappropriately and incorrectly fought Lincoln’s executive powers during the Civil War (when they were both authorized and very much needed) because of his sympathy for the rebels. And he was kind of a jerk? There were good justices during this time (<3 Joe Story <3), but the Court, on the whole, was heading toward the brink."
I tightened all the era descriptions, I think because it was all getting too wordy, but I could think of very little to recommend the Taney Court or Roger Taney specifically. Much as I hated to throw Joseph Story under the bus, he was a bright spot in a not-great era of the court.
Re: Burger Court: I no longer remember precisely what led me to put that line in there, but I remember thinking it was important. I think the Burger Court did gain a genuine reputation as a "conservative" court in the 1980s, because of the old rule in (left-wing) media that an institution moving steadily to the left is normal, while an institution moving to the right is an radical usurpation by ultra-conservatives. They genuinely couldn't imagine a Court that *actually* went to the right wing, so any deviation from liberalism was perceived as conservatism. Then they had no language to describe it when the Court actually became conservative. If, God forbid, the right-wing post-originalist movement ever gets control of the Court (Adrian Vermeuele's project), the Court will finally actually become a radical activist court, but the press, which has been calling Court conservatives radical activists since Burger, will have no language for it. Again, though, I psychologize my opponents.
In truth, I am not so sure that Dred Scott was, in terms of consequences, that bad of a decision.
As a matter of law, it's highly problematic (though I do find it interesting that the more controversial holding at the time was the invalidation of the Missouri Compromise, but what people seem to criticize most about it today was its assertion that federal black citizenship was impossible). But I am sure there are no shortage of decisions whose reasoning was as bad or even worse that no one knows about because their impacts were so small (or at least not readily noticeable) no one has heard of them. What makes people consider a decision bad is not merely bad reasoning, but bad impact on top of that.
Thus we turn to impact. What was its impact? As a decision, Dred Scott v. Sandford existed for only 11 years before the Thirteenth and Fourteenth Amendments disposed of just about everything people criticize about it, and--setting the Civil War aside for a moment--I am not sure if it actually had that much practical impact, though one is free to correct me. During that relatively short time period, I believe blacks still retained state citizenship under it at least, and I am not so sure its holding strengthened slavery in a practical sense (it allowed slaveholders to bring slaves to territories without worries, but did that actually decrease the number of slaves in any way?) When one sees criticisms of effects, it is usually on abstract issues rather than pointing to practical results, the Civil War aside. The decision was not even particularly harmful to Scott himself in the end, because he was emancipated less than a month after it occurred.
Of course, there is the Civil War that should be considered. That's a really big thing. But we run into two problems when we consider whether Dred Scott had a bad impact in regards to the Civil War. First, did it actually aid in causing the Civil War? Second, taken as a whole, was the Civil War actually a bad thing? If the answer to either is "no" then the Civil War cannot be cited as a bad result of Dred Scott... and when that happens, the arguments about how it had a bad impact largely evaporate.
On the question of its relation to the outbreak of the Civil War, this has been highly, highly debated. Some historians think it was a major factor, some say it aggravated things but it could've happened without it, some historians think it was ultimately incidental, and some historians even think it may have made Civil War less likely, even if it still did happen. I don't know enough to have an opinion on it, but the point is there clearly is a lot of disagreement on this question. If there is such disagreement as to its effect causing the Civil War, can we really cite the Civil War as a negative impact?
And then we come to the second question: On balance, was the Civil War bad? Certainly, bad things were in the Civil War--the large number of deaths and destruction--but what about the end of slavery? Far more people were liberated due to the Civil War than died in it. In Jamal Greene's article "The Anticanon" (see https://harvardlawreview.org/print/vol-125/the-anticanon/), he analyzes and does some devil's advocating for the "anticanon" cases (specifically Scott/Plessy/Lochner/Korematsu), and he notes this in regards to Dred Scott on page 411-412:
“In his time, Taney could not easily have held other than he did. His commentary on the status of slavery in the territories, though unnecessary to his holding, was at the invitation of prominent members of Congress, President Buchanan, and even Abraham Lincoln. The more obvious route to war would have been a holding that Scott was made free based on his residence at Fort Snelling or, better still, in Illinois. Had Taney instead remained silent on the Missouri Compromise, the standard account of Dred Scott tells us that he might have enabled Stephen Douglas to win the Presidency in 1860 and might therefore have put off the War. If this is the fate Taney denied us, then we should celebrate the decision. If Dred Scott’s legacy is existential military conflict, then it is also emancipation for millions of enslaved Americans, the new birth of freedom that the Fourteenth Amendment promised, and confrontation with the moral inadequacy of our original commitments. Dred Scott told us we had to take or leave a Constitution that enshrined white supremacy. We left it, and we are better for it."
Dred Scott's reasoning might have been bad, but it seems someone can make a rather plausible argument that in the end, its concrete results were either neutral or even outright positive, even if all of this was obviously not the intention of the decision.
I confess that I am one of those who believes the Dred Scott decision was a key factor leading to the Civil War, so much so that, but for Dred Scott, I do not think you get the rapid rise of the Republican Party, I do not think you get President Lincoln, I do not think you get a secession crisis at any point in the 1860s, and civil war, if it comes at all, does not closely resemble the one we had. You're right that the consequences of that could be good or bad: maybe slavery ends without so much horror, or maybe it spreads to the whole Union and drags on for centuries more.
One of the sometimes-overlooked aspects of the Dred Scott case is that many in the North believed that the Supreme Court was setting the stage to abolish free states altogether. (Many of the majority's arguments worked just as well in free states as they did in federal territories, and the majority did not do all that much to cabin their ruling. Lemmon v. New York, a case raising just this question, was already in the system, wending its way to SCOTUS.) This fear supercharged the backlash and made the decision even more consequential than it already was. Lincoln alludes to this fear in a number of his post-Dred Scott speeches.
However, when I object to the Dred Scott decision as a black stain on the Taney Court, I am not speaking about the consequences, both because the consequences are very, very hard to pin down (because the counterfactual is so debatable) and because a bad judicial ruling with good consequences is still a bad judicial ruling. Dred Scott was a doozy! It was horribly reasoned and reached obviously false conclusions.
Sometimes the Supreme Court forces itself into a logical pretzel for a "good cause," like a sympathetic litigant. The good cause doesn't make a bad decision any better (hard cases make bad law!), but it does make it a little easier to forgive the error, since at least they were trying to do something good. But Dred Scott was a horrible decision in service of one of the most evil goals in U.S. history! That, too, is a strike against it.
Consequences are hard to fully account, but, no matter what the consequences were, I think we can safely say that Dred Scott was a historically irrational exercise of raw judicial power, in service of great evil. It was so egregious, on both counts, that it deservedly stains Roger Taney and his Court, to the exclusion of most else -- even if the decision ultimately sowed the seeds of his own destruction.
Thanks for this valuable contribution to current conversations! The later graphs show us something valuable that I hadn't seen elsewhere. The number of laws and institutions affected by each overturned precedent would be a worthy investigation for some grad student who can dedicate the time.
I do wonder about how you characterize stare decisis. You refer to it as a doctrine of keeping bad decisions, as amounting to an admission that something is wrong, but you don't want to fix it. That's not the way I've seen the term applied elsewhere. Stare decisis, as far as I have seen, applies where a court (or the Court) might rule in a variety of ways, without believing that precedent is necessarily wrong, but the court keeps to prior precedent in order to be fair and maintain trust in the law.
For example, the bar for prosecution for incitement to violence is extremely high in the United States. This precedent originally protected the violence of the KKK, but when leftists later came before the Court for inflammatory speech, stare decisis saw to it they were treated the same.
A legal team might rely heavily on stare decisis arguments when they suspect the judges before them do not agree with a prior ruling and will not buy their other arguments, but I'm not aware that invocation of the principle necessarily indicates a belief that the prior decision was in error. Not unless a Court believes that any decision other than what they would make with no precedent is bad, at which point we're discussing sheer arrogance more than legal reasoning.
How we read these graphs depends on how we contextualize history. The Constitution was written by wealthy White men in order to support their own long-term interests, and the early court made sure it did so. The lack of overturned precedents in the early court isn't just a function of the country being young; the range of judicial philosophies appointed would also have consistency within the range of interests they were designed to defend.
By the mid-20th century, we finally had enough people who were not White men in the electorate to filter into the dispositions and hermeneutics of the Supreme Court, thus resulting in readings that favored the American populace in general, at least sometimes--which necessarily means overturning precedents of a Court that did not. With the Barrett Court, thanks to a partisan re-alignment that enables a Senate majority to reflect the interests of well-off White men even with a minority of votes, we have a Court poised to return power to the race, class, and gender of people whom the framers intended. Out with the old overturnings, in with the new!
I have no doubt that you read this history differently.
Incidentally, I finally migrated over to Substack once you updated your old blog after some time. I'll probably be commenting on older posts now and again.
Welcome back, Drea! The comment system over here is one of the two most compelling reasons I moved over to Substack. (The other is the footnotes.) It's so much easier to write them now, and hopefully you'll find them as comfy as I do. Pleasure having you back, in any event, and with a comment that will no doubt keep me typing for an hour!
On stare decisis: it's true that, in a case where all parties agree with the underlying precedent, stare decisis is followed -- but that's not because of the Value Of Stability In The Law, it's because everyone thinks the precedent *was correct* in how it explained the law. Why wouldn't they keep building on the firm foundations of a precedent they all agree with?
It is also true that, in many cases, one party to the case does *not* agree with the prior precedent, but argues that its position follows the precedent (or extends it, or is distinguished from it) anyway. This is also not because of the Value Of Stability In The Law per se, but rather because the side that disagrees with the precedent thinks they has a higher chance of winning the case if they avoid challenging the precedent. This may be because it's easier to convince judges of small things than big things, or it may be because lots of the judges have already endorsed the prior precedent in other decisions and clearly wouldn't be open to a broad attack. Again, stare decisis gets followed, but by accident, not as a Solemn Principle Of Law.
But, sometimes, petitioners do challenge precedents they disagree with. (They obviously never challenge precedents they agree with.) Now, finally, it falls to the Court to consider the precedent.
When a precedent is challenged, the Court may consider the precedent carefully and then say, "Yep, that precedent was correct. We stand by it because it was correct." Again, precedent gets followed, but not because of The Value Of Stability In The Law. In these cases, the judges are saying that, even if the precedent didn't exist and was being decided for the first time in the current case, they'd still have to rule exactly the same way, not because of the precedent, but because of the law.
Stare decisis principles get invoked in one and only one type of case -- the only kind of case that's left: a case where one of the litigants directly challenge the precedent, and the judges agree that the challenge (at the very least) has some good, persuasive logic behind it. Once they've admitted that, *then* they weigh The Value Of Stability In The Law against the value of deciding the case correctly. That's the only situation where stare decisis becomes relevant to the resolution of a case. Every other kind of case gets disposed of before reaching this point.
Obviously, when singing the praises of stare decisis, nobody describes it the way I did in this piece, as a choice between consciously doing injustice to a concrete person in the courtroom and doing harm to the abstract principle of stable legal rules. But, by definition, stare decisis can't do meaningful any work resolving a case *unless* the underlying precedent is in serious doubt. That's why some people hate it so much.
I'm not one of those people. I think stare decisis has value in several situations: in areas of deep, genuine ambiguity, where you can't really say that your interpretation of the law is clearly better than the precedent's interpretation, it doesn't really do any good to overthrow the old rule and impose a new one (with just as little justification). Meanwhile, in areas where The People have easy recourse to change a precedent -- for example, by revising a statute to eliminate an ambiguity that led to the court case that created the precedent -- I think there's at least some value in not updumping apple carts that Congress may not have *intended*, but which it has come to *rely upon* nonetheless.
But I think it's worth acknowledging that, when you follow a court's prior decision on how a particular statute should be applied in a certain kind of court case, you either (a) agree with that prior decision, in which case you're not relying on stare decisis at all, or (b) disagree with that prior decision, but have decided to close the doors of the court to a petitioner who (you think) has a valid legal claim, telling him to go petition Congress instead. It's worth it, but the cost is not cheap.
(Sidebar: Overattention to precedent has another risk, too, not mentioned in this article: it tends to allow the most reckless jurist to define the law for all time. Although I agree with Gorsuch's Bostock opinion, I think Josh Blackman's general observations were correct in his famous article, "Stare Decisis is an Old Latin Phrase that Means 'Let the Decisions of the Warren Court Stand'". https://reason.com/volokh/2020/07/01/stare-decisis-is-an-old-latin-phrase-that-means-let-the-decisions-of-the-warren-court-stand/ And he quotes my nemesis, Adrian Vermeuele, so I WANT to disagree!)
This is why I think it would be fairly silly for anyone to scream at the Post-Lochner and Warren Courts for overturning a bunch of precedents. They were correct to follow the Constitution as *they* understood it, not the Constitution as William Howard Taft understood it. That's the Oath justices swear! (I have a lot of beefs with the Warren Court, to be sure! But this isn't one of them. And the post-Lochner guys did the Constitution a great service by killing Lochner.)
However, it would be even *sillier* for someone to scream at the Barrett or Kennedy Courts for desecrating stare decisis, while giving the Warren and Burger Courts a pass. Yet we see people doing exactly that all the time at the moment (or at least I do). Elie Mystal had a piece in The Nation this week that did just this, and he earns way more money than I do, so I don't think I'm nutpicking when I single out this critique for a slightly deeper analysis. If you're for stare decisis for judges you like, but against stare decisis for judges you don't like as much, then you're not for stare decisis at all! You're just pro-judges-you-like. (And that's fine! Let's just be honest about that, Mr. Mystal!)
Anyway, I think I answered your... question? comment? rejoinder?... about what stare decisis actually *is*.
"How we read these graphs depends on how we contextualize history."
One of the fun things about data is indeed that it can usually be interpreted in a number of different ways. Data can narrow the possibility space, but it can't draw conclusions by itself!
"The Constitution was written by wealthy White men in order to support their own long-term interests, and the early court made sure it did so."
I do pretty fundamentally disagree with Charles-Beardism as a matter of history. I just don't think this was either the intention or the effect of the Founding Fathers, and I think history quite amply disproves his thesis. If you're looking for a fun read that deals respectfully but not particularly intensely with Beard's thesis (among other things), I recently finished (and really enjoyed) Mr. Akhil Amar's "America's Constitution: A Biography," which acknowledges the strengths of Beard's thesis while also pointing out a whole lot of things Beard left out.
But, for those who agree with his thesis to this day, yes! I would expect such people to read things very differently!
"By the mid-20th century, we finally had enough people who were not White men in the electorate to filter into the dispositions and hermeneutics of the Supreme Court, thus resulting in readings that favored the American populace in general"
Even assuming for the sake of argument that Charles Beardism is correct, this is a pretty gosh-darn-dang generous interpretation of the mid-century Supreme Court's decisions. Many of their decisions were profoundly unpopular across *all* demographics of American society -- except for a very small coterie of progressive elites.
After all, had the Supreme Court's mid-century decisions enjoyed broad popular support, *they would have been voted into law* after the 19th Amendment, or at the very least after the Civil Rights Act of 1964. But they weren't, so, instead, (to name two examples off the top of my head) the Supreme Court imposed one of the most radical abortion regimes on the face of Planet Earth and abolished the death penalty for four years, among other radical and quite frankly lawless, tyrannical acts. (I say this as someone who agrees with abolishing the death penalty!) Their misbehavior inspired a strong democratic *backlash* against them in the 1980s, which makes it even more tenuous to argue that they were serving the interest of the People. (Say what you will about the importance of the national popular vote, but Reagan won it by 18 points in '84.)
At bottom, that's the fundamental problem with the argument that today's broader sense of democracy justifies judicial activism. The idea is that we should keep this putatively undemocratic elitist Constitution, but fix its democratic deficiencies... by entrusting it to a bunch of unelected, unaccountable elites from Yale and Harvard Law? People who are even *less* bound by the Will of the People than Madison and Adams? This seems self-contradictory. Instead, if the premise is true, and the Constitution's founding really is fatally compromised by the narrowness of the franchise under which it was ratified, then the conclusion must be that the Constitution should be abrogated and replaced by a new document, one that can be ratified by ~80% of Americans today, under today's suffrage rules. Anything less seems like a parlor trick.
I think you and I are saying similar things about stare decisis. You emphasize more than I do that it only comes up when you consider the precedent worth overturning, whereas I'm seeing it as more baked into judicial reasoning generally, but the bottom line is the same: you should be mindful of wanting it to apply to precedents you like but not to those you don't.
The current Court may or may not ultimately overturn more precedents than other recent eras, but it does seem more likely to overturn precedents that a majority of Americans want to keep. Confidence in the Court is at historic lows. Antimajoritarian aspects of the Senate have enabled a supermajority on the Court of a judicial philosophy espoused by a minority of Americans. To you, this is the best Court in decades. Most Americans disagree. So you're going to have more uproar than when overturned precedent agrees with American public opinion.
This Court is also doing a fair bit of rendering precedents meaningless without overtly overturning them. I get your elation at overturning Roe v. Wade. What boggles me is how you can look at Egbert v. Boule, which eviscerates without overturning Givens, and think "best Court in decades"--other than with the comfort that you are not the sort of person whom federal officers are likely to assault.
Your response about electoral outcomes raises the distinction between rulings that favor, protect, or serve all Americans versus rulings that are popular. If the Court rules that you cannot mistreat or murder a subgroup of people, then this decision serves all Americans, even if a majority of Americans think it's fine to murder or mistreat them and don't like being told otherwise. From a pro-life perspective, Republicans are about to face electoral backlash for exactly this reason. So we can't argue that a decision would be passed into law if it really did favor all Americans, in the sense of protecting the fundamental rights of all persons. Whenever the Court defends the rights of a disempowered minority, who definitionally have relative disadvantage in passing laws, exactly the opposite would be the case.
I don't think we need to get into the details of Beard's arguments about bonds and whatnot, nor do I think the founders were generally thinking in so narrow a sense. Rather, the Constitution was drafted and ratified by a sliver of the population, and that sliver wrote a document both with intended and unintended bias in their favor. I'm not sure how you look at American history, or America today, and see disproof rather than proof of this thesis, but arguing that is a deep rabbit hole. Instead, in order to claim the founders did *not* privilege their own interests, you need to go against the reasoning behind representative government in general. Different groups have different interests and must have representation in order to reach collective agreements. Most Americans weren't at the table. Pretending that any resulting document would represent all Americans is magical thinking, or at any rate, not thinking aligned with a republic.
I looked up that article by Elie Mystal, and here's what I found:
"we are living in something akin to a juristocracy: a system in which unelected judges with lifetime appointments rule us from on high. Arguably, we’ve been trending in that direction for decades, and perhaps the flaw goes all the way back to Marbury v. Madison and the court’s 1803 power grab."
That doesn't sound like a call for judicial activism as the ideal! It actually sounds more like what you wrote as a preamble to your proposed Constitutional amendments, with the goal of returning functionality to the legislature. It isn't that progressives like judicial activism. Instead, people who don't look like you hope that the Court might rule in their favor, because persuading nine unelected lawyers is still less of a long shot than getting a system built by and for an elite to do anything other than what it was designed to.
All this leads us to a surprisingly similar place: our legislature is broken, our laws are getting made by bureaucrats and judges, and we need a new Constitution or significant amendments approved by a high majority of the people to avoid tyranny, civil war, or dissolution of the United States. Anything else, as you put it, is a parlor trick.
Well, this is admittedly from years ago, but you allude to this article in the newest article, so...
"The Taney Court (1836-1864): Best known for the foul Dred Scott decision, and deservedly so."
Honestly, I question it being deservedly so. The Taney Court lasted for 28 years. Is it really fair to say that one decision, even one like Dred Scott, should be the one thing most people can name about it? I cannot think of any other court that is so identified with one particular case in particular; even Marbury v. Madison doesn't seem to dominate the idea of the Marshall Court like Dred Scott does for the Taney Court.
Then again, I can't off the top of my head say much they did other than that. I can point to Prigg v. Pennsylvania and Strader v. Graham, but those are mostly notable because of their connection to Dred Scott (Prigg is remembered because it's accused of "setting up" Dred Scott, and Strader is remembered because critics of Dred Scott say they could've decided Dred Scott narrowly and with little controversy had they simply affirmed some dicta from Strader). All that comes to mind offhand that isn't notable because of Dred Scott is The Prize Cases (allowing Lincoln to blockade ports early in the Civil War before there was a formal declaration of war), and while The Prize Cases was very important at the time, the fact it was about those very specific circumstances means they matter little for cases going forward and so it's not that remembered.
Maybe the reason for Dred Scott gobbling up all the focus is therefore the fact they didn't do all that much notable other than it. All the important groundwork had already been laid by Harlan, and there was less important things to rule on. After all, the federal government was smaller so there were fewer laws to litigate over, and there was not yet any Fourteenth Amendment (which is the gift that keeps on giving when it comes to creating constitutional litigation).
“I think the Warren and Burger courts should be counted together, but some people have the strange idea that Chief Justice Burger or his Court were conservative, so I must count them separately, or those people will think I’m pulling a fast one.”
I don't think many say Burger or the court was conservative, but there are plenty who think it was more conservative than the Warren Court. Granted, it was also the court that gave us Roe v. Wade, which was probably more extreme than anything out of the Warren Court. Still, I remember reading an article where someone was arguing that the belief that the Burger Court was particularly liberal comes largely from Roe v. Wade, and that it gave a misleading impression of the Burger Court as a whole. (Burger himself did later turn against Roe)
Re: Taney: I basically had this entire internal monologue with myself when I wrote the article originally.
An early draft of this passage read, "Chief Justice Roger Taney has a bad rap. And he completely deserves it. Not even 28 years of exemplary Supreme Court service could justify the foul Dred Scott decision… and Taney’s prior and subsequent service was not exemplary! He inappropriately and incorrectly fought Lincoln’s executive powers during the Civil War (when they were both authorized and very much needed) because of his sympathy for the rebels. And he was kind of a jerk? There were good justices during this time (<3 Joe Story <3), but the Court, on the whole, was heading toward the brink."
I tightened all the era descriptions, I think because it was all getting too wordy, but I could think of very little to recommend the Taney Court or Roger Taney specifically. Much as I hated to throw Joseph Story under the bus, he was a bright spot in a not-great era of the court.
Re: Burger Court: I no longer remember precisely what led me to put that line in there, but I remember thinking it was important. I think the Burger Court did gain a genuine reputation as a "conservative" court in the 1980s, because of the old rule in (left-wing) media that an institution moving steadily to the left is normal, while an institution moving to the right is an radical usurpation by ultra-conservatives. They genuinely couldn't imagine a Court that *actually* went to the right wing, so any deviation from liberalism was perceived as conservatism. Then they had no language to describe it when the Court actually became conservative. If, God forbid, the right-wing post-originalist movement ever gets control of the Court (Adrian Vermeuele's project), the Court will finally actually become a radical activist court, but the press, which has been calling Court conservatives radical activists since Burger, will have no language for it. Again, though, I psychologize my opponents.
In truth, I am not so sure that Dred Scott was, in terms of consequences, that bad of a decision.
As a matter of law, it's highly problematic (though I do find it interesting that the more controversial holding at the time was the invalidation of the Missouri Compromise, but what people seem to criticize most about it today was its assertion that federal black citizenship was impossible). But I am sure there are no shortage of decisions whose reasoning was as bad or even worse that no one knows about because their impacts were so small (or at least not readily noticeable) no one has heard of them. What makes people consider a decision bad is not merely bad reasoning, but bad impact on top of that.
Thus we turn to impact. What was its impact? As a decision, Dred Scott v. Sandford existed for only 11 years before the Thirteenth and Fourteenth Amendments disposed of just about everything people criticize about it, and--setting the Civil War aside for a moment--I am not sure if it actually had that much practical impact, though one is free to correct me. During that relatively short time period, I believe blacks still retained state citizenship under it at least, and I am not so sure its holding strengthened slavery in a practical sense (it allowed slaveholders to bring slaves to territories without worries, but did that actually decrease the number of slaves in any way?) When one sees criticisms of effects, it is usually on abstract issues rather than pointing to practical results, the Civil War aside. The decision was not even particularly harmful to Scott himself in the end, because he was emancipated less than a month after it occurred.
Of course, there is the Civil War that should be considered. That's a really big thing. But we run into two problems when we consider whether Dred Scott had a bad impact in regards to the Civil War. First, did it actually aid in causing the Civil War? Second, taken as a whole, was the Civil War actually a bad thing? If the answer to either is "no" then the Civil War cannot be cited as a bad result of Dred Scott... and when that happens, the arguments about how it had a bad impact largely evaporate.
On the question of its relation to the outbreak of the Civil War, this has been highly, highly debated. Some historians think it was a major factor, some say it aggravated things but it could've happened without it, some historians think it was ultimately incidental, and some historians even think it may have made Civil War less likely, even if it still did happen. I don't know enough to have an opinion on it, but the point is there clearly is a lot of disagreement on this question. If there is such disagreement as to its effect causing the Civil War, can we really cite the Civil War as a negative impact?
And then we come to the second question: On balance, was the Civil War bad? Certainly, bad things were in the Civil War--the large number of deaths and destruction--but what about the end of slavery? Far more people were liberated due to the Civil War than died in it. In Jamal Greene's article "The Anticanon" (see https://harvardlawreview.org/print/vol-125/the-anticanon/), he analyzes and does some devil's advocating for the "anticanon" cases (specifically Scott/Plessy/Lochner/Korematsu), and he notes this in regards to Dred Scott on page 411-412:
“In his time, Taney could not easily have held other than he did. His commentary on the status of slavery in the territories, though unnecessary to his holding, was at the invitation of prominent members of Congress, President Buchanan, and even Abraham Lincoln. The more obvious route to war would have been a holding that Scott was made free based on his residence at Fort Snelling or, better still, in Illinois. Had Taney instead remained silent on the Missouri Compromise, the standard account of Dred Scott tells us that he might have enabled Stephen Douglas to win the Presidency in 1860 and might therefore have put off the War. If this is the fate Taney denied us, then we should celebrate the decision. If Dred Scott’s legacy is existential military conflict, then it is also emancipation for millions of enslaved Americans, the new birth of freedom that the Fourteenth Amendment promised, and confrontation with the moral inadequacy of our original commitments. Dred Scott told us we had to take or leave a Constitution that enshrined white supremacy. We left it, and we are better for it."
Dred Scott's reasoning might have been bad, but it seems someone can make a rather plausible argument that in the end, its concrete results were either neutral or even outright positive, even if all of this was obviously not the intention of the decision.
I confess that I am one of those who believes the Dred Scott decision was a key factor leading to the Civil War, so much so that, but for Dred Scott, I do not think you get the rapid rise of the Republican Party, I do not think you get President Lincoln, I do not think you get a secession crisis at any point in the 1860s, and civil war, if it comes at all, does not closely resemble the one we had. You're right that the consequences of that could be good or bad: maybe slavery ends without so much horror, or maybe it spreads to the whole Union and drags on for centuries more.
One of the sometimes-overlooked aspects of the Dred Scott case is that many in the North believed that the Supreme Court was setting the stage to abolish free states altogether. (Many of the majority's arguments worked just as well in free states as they did in federal territories, and the majority did not do all that much to cabin their ruling. Lemmon v. New York, a case raising just this question, was already in the system, wending its way to SCOTUS.) This fear supercharged the backlash and made the decision even more consequential than it already was. Lincoln alludes to this fear in a number of his post-Dred Scott speeches.
However, when I object to the Dred Scott decision as a black stain on the Taney Court, I am not speaking about the consequences, both because the consequences are very, very hard to pin down (because the counterfactual is so debatable) and because a bad judicial ruling with good consequences is still a bad judicial ruling. Dred Scott was a doozy! It was horribly reasoned and reached obviously false conclusions.
Sometimes the Supreme Court forces itself into a logical pretzel for a "good cause," like a sympathetic litigant. The good cause doesn't make a bad decision any better (hard cases make bad law!), but it does make it a little easier to forgive the error, since at least they were trying to do something good. But Dred Scott was a horrible decision in service of one of the most evil goals in U.S. history! That, too, is a strike against it.
Consequences are hard to fully account, but, no matter what the consequences were, I think we can safely say that Dred Scott was a historically irrational exercise of raw judicial power, in service of great evil. It was so egregious, on both counts, that it deservedly stains Roger Taney and his Court, to the exclusion of most else -- even if the decision ultimately sowed the seeds of his own destruction.