David L. Shapiro (Harvard Law School) has posted The Role of Precedent in Constitutional Adjudication: An Introspection (Texas Law Review, Vol. 86, No. 5, 2008) on SSRN. Here is the abstract:
Much scholarly interest in recent years has centered on the proper role of precedent in constitutional adjudication, especially in the Supreme Court. This essay seeks to contribute to this lively and important debate, first, by summarizing (and categorizing) the principal approaches to the issue that have been advanced by scholars and judges, second, by explaining and defending my own position, and, finally, by testing that position in the context of an especially difficult problem. In the process, the essay seeks to cast light on some broader questions about the role of theory in the judicial process.
And from the text:
I have concluded that stare decisis has an important place in constitutional jurisprudence. Indeed, I have come to believe that the suggested dichotomy between the Constitution and a decision or line of decisions interpreting it is in some respects significantly misleading. The sedimentary metaphor of Friedman and Smith is, for me, a powerful one.46 Important provisions of the Constitution have been interpreted over time, and whether or not those decisions are readily reconciled with either the actual text or the original “public meaning,” as many originalists use the term, they constitute part of our constitutional heritage at least as gloss and perhaps as a more malleable, but nevertheless cognizable, part of the Constitution itself. My response to Lawson, in other words, is in part that the meaning of the Constitution cannot be determined without giving heed to its interpretation over time.
I am influenced by the practical arguments of efficiency and predictability that support the doctrine, as well as the more normative arguments based on considerations of fairness, coherence, and legitimacy. Indeed, it is hard to overstate the value of coherence and predictability in the law as a basis for avoiding disputes and for facilitating settlements when disputes do arise. To be sure, this virtue may be more critical in everyday affairs (the rules for determining ownership of property, for example) than in the loftier realm governed by the Constitution. Yet constitutional rules do affect a wide range of relationships, especially those involving the interaction between the public and private spheres.
But perhaps my principal reason for finding the doctrine a congenial one lies in my own Burkean approach to the world in general and to law in particular.47 The value that I place on tradition derives not so much from distrust of human reason or judgment as from a conviction that individuals, and here I include myself at the head of the list, are likely to overrate their own rationality, wisdom, or judgment (and to underrate the extent of their own biases). Thus, I agree with Young, who observes that a central aspect of respect for tradition in general, and precedent in particular, is importantly related to humility48—even though I recognize that any claim of humility is likely to be dismissed as arrogant.49
And:
To summarize, my criteria at the outset of my new career on the highest Court would not support a vote to overrule a precedent or line of precedent unless (a) I am convinced that the precedent(s) were clearly wrong when rendered or had clearly become unsound in the light of experience, and (b) I am also convinced that the error is significantly obstructing the achievement of generally recognized and important objectives, is obstructing the vindication of basic rights, or (more cautiously) is so inconsistent with later precedent that its rejection is required in the interest of coherence and predictability in the law.62
Highly recommended.
I have long been a great admirer of Shapiro’s keen intelligence and magisterial command of legal detail. This breezy essay is readable and full of wisdom. One of the most interesting passages occurs in a footnote (footnote 49), in which Shapiro discusses Adrian Vermeule’s critique of Burkean constitutionalism.
Shapiro has a brief comment on my theory of constitutional stare decisis (see The Supreme Court in Bondage):
Not every scholar who has written on this topic fits comfortably into one of these categories, broad and flexible as they are. I have found none, however, who advocates a doctrine of total deference to precedent—a position once espoused (though never fully observed) and now abandoned by the House of Lords.31 But one unusual essay . . . deserves mention. Lawrence Solum—in a defense of what he describes as neoformalism, an approach defined as a variant of formalism that abjures both mechanical jurisprudence and pure instrumentalism—advocates strong precedential effect (overrule only under extraordinary circumstances) to decisions that meet his neoformalist criteria. Conversely, he argues for a considerably weaker precedential effect, amounting to a mild presumption of validity, to those decisions not meeting those criteria.32 While the chances that such an approach will ever be adopted, explicitly or even implicitly, strike me as hovering around zero, Solum’s thesis shows how intricate and, yes, idiosyncratic theories of precedent can be.
Shaprio makes two claims here: (1) that a neoformalist approach to stare decisis has a chance of being adopting that approaches zero, and (2) that such an approach is idiosyncratic. I imagine these two comments are interrelated. Shaprio’s judgment about the probability of adoption is related to his perception that the view is idiosycratic.
Of course, there is a sense in which Shapiro is right on both scores. In the United States, realist and instrumentalist views about horizontal precedent have dominated the thinking about courts of last resort, including the United States Supreme Court for decades. The instrumentalist mindset is so deeply engrained that any formalist move in legal theory will strike many contemporary legal academics and some practitioners as obviously false. But as Brian Tamanaha has convincingly demonstrated our contemporary infatuation with instrumentalist approaches to judging is historically contingent, and indeed, in the extreme form it takes in the American legal academy it is almost unique. (See Brian Z. Tamanaha, Law as Means to an End: Threat to the Rule of Law (Cambridge University Press, 2006))
On way to see the historical and cultural contingency of Shaprio’s resistence to formalism is to imagine how contemporary American views about precedent would have looked from various perspectives. Would an English judge of the nineteenth century have thought it plausible that American judges in the twentieth century would adopt the "predictive theory of precedent" and adopt the theory that a holding can be legislated by a "we hold that . . ." statement? In my opinion, such views would have been considered idiosyncratic and the chances of their adoption might well have been "near zero."
Read Shapiro!