WASHINGTON — Supreme Court judges, like most people, like to appear consistent. Nobody wants to be seen as a flip-flopper, an opportunist or a hypocrite.
That means judges don’t try to reject previous legal views, even those in dissent, in opinions they wrote as judges on the appeal court, in academic work, in their hearings and elsewhere.
This impulse, dubbed “personal precedent” in a provocative new article, may be at odds with respect for precedent in the conventional sense.
The power and legitimacy of such personal precedents has rarely been examined, and the rare scholars who have considered it have been mostly critical. “To take into account one’s individual track record on an issue” when making decisions about whether or not to ignore factual precedents “is an example of political behavior,” wrote Allison Orr Larsen, a law professor at William & Mary, in a 2008 article.
The new article, to be published in The Harvard Law Review, takes a different view, stating that “personal precedent is both central and should play in Supreme Court practice.”
Its author, Richard M. Re, a law professor at the University of Virginia, states that “a judge’s personal right works such as law – indeed, as the building block of law.”
There is no doubt that judges appreciate what Judge Stephen G. Breyer called “the importance of personal consistency” in a recent book.
“A judge who has previously expressed an opinion, even on a fairly minor technical issue, may hesitate to fully endorse a majority opinion expressing an opposing opinion on the minor issue lest the legal public think the judge is inconsistent is,” Judge Breyer said. wrote.
If that applies to small matters, then it certainly applies to important matters.
The longer judges serve, the more personal precedents they accumulate. At the end of the tenure of Judge William J. Brennan Jr., who served on the Supreme Court for nearly 34 years, “his vast array of opinions sent his clerks, except on the rare occasions when a new matter arose,” Seth Stern and Stephen Wermiel wrote in their 2010 biography of justice, who retired in 1990 and died in 1997.
“The guiding principle,” the biographers wrote, “was not to contradict his earlier opinions.”
Lawyers certainly take personal precedents into account. In a major case about the scope of the Second Amendment that was argued in November, the parties’ letter focused heavily on a dissent that Judge Brett M. Kavanaugh had promulgated while serving as a judge on the appeals court. In the letter from the federal government, the dissent was mentioned nine times.
“It is extraordinary to draw attention to such a clearly unprecedential opinion — and impossible to reconcile with any formal rule of precedent,” wrote Professor Re.
Another appeals court dissent, Judge Amy Comey Barrett’s, also surfaced in the briefing, with the challengers citing it three times.
Deviations, of course, have no precedent value in the conventional sense. But they certainly matter as the judges’ personal precedent.
Even the scholarly writings of judges play a role in Supreme Court rulings. Chief Justice John G. Roberts Jr. wrote a little-noted status article in 1993, more than a decade before joining the Supreme Court in 2005. It was not cited in a Supreme Court memorandum until 2006. Since then, it has been quoted more than 50 times.
Personal precedents can support institutional precedents as long as court membership doesn’t change. After all, as Judge Antonin Scalia wrote in a 1989 dissent, “overruns of precedent rarely occur without a change in court staffing.”
According to a count by Michael J. Gerhardt, a law professor at the University of North Carolina, the Supreme Court has dismissed one of its decisions only five times without an intermediate change in its membership.
“The slow speed at which seats move promotes continuity in case law,” Justice Barrett wrote in a 2013 article on the law before coming to court. “Judges do change their minds, but overruling is more likely when fresh eyes see a case.”
An opposing view was expressed in a 2008 book by Richard A. Posner, a prominent federal appeals court judge who retired in 2017. “If changing judges changes the law,” he wrote, “it’s not even clear what the law is.”
In an interview, Professor Re said that “the institutional precedent largely depends on and is sometimes controlled by a different kind of precedent, a personal precedent, which is more fundamental and which has good and bad qualities and which we have to manage.”
“You have to take it into account,” Professor Re said of a personal precedent. “You can’t wish it away.”
While Professor Larsen praised Professor Re’s paper as sophisticated and measured, he said “he underestimates the impact of personal precedents on the court as an institution.”
“The endgame,” she said, “is an even more polarized Supreme Court with very little room for consensus and common ground.”