A new theory about how justices rule in cases before the Supreme Court is getting a lot of attention — and sparking some controversy. It’s an idea called “personal precedents,” and it was coined in a recent academic article by University of Virginia Law School professor Richard M. Re. According to Re, “personal precedent is a judge’s presumptive adherence to her own previously expressed views of the law.” In other words, it is a judge’s fidelity to their earlier views, even those that appeared in dissents, in opinions they wrote as lower court judges, or in briefs they filed as appellate lawyers or academics.
Is it important for a judge to be consistent with their own prior arguments, even at the expense of the Court’s overall precedent?
That’s the question raised by the New York Times’ Adam Liptak in a recent piece weighing the value of personal precedents. Liptak quotes retiring Justice Stephen Breyer, who in a recent book wrote about “the importance of personal consistency.” “A judge who has previously expressed a view, even on a fairly minor technical matter, may hesitate to join fully a majority opinion expressing a contrary view on the minor matter, lest the legal public think that the judge is being inconsistent,” Justice Breyer wrote.
But if a judge or justice never amends their own views to adhere to newly-established precedent (say, after they’ve lost the argument and found themselves in the minority on a particular case), what is the point of having precedent at all?
Liptak points out that the Supreme Court tends to overturn precedent not because the justices have changed their minds, but because the justices themselves retire and new ones fill their places. It is the changing composition of the Court that puts long-standing decisions in jeopardy.
That has perhaps never been more true than it is now, when the Court’s ascendant conservative majority has threatened precedents as politically sensitive as Roe v. Wade and Obergefell v. Hodges, which legalized gay marriage.
As liberals hope that stare decisis — the principle of adhering to institutional precedents — protects progressive judicial victories, the notion of personal precedents could emerge as a competing reason for overturning those victories.
The rationale would go like this: Justice Amy Coney Barrett, who was confirmed to the Court after expressing skepticism about abortion rights, would rule in such a way that is consistent with her previously-expressed views. She would be weighing her own personal precedent against that of the Court.
Allison Orr Larsen, a professor at William & Mary School of Law, has argued that personal precedents constitute political behavior. Liptak quotes Larsen as saying that the recent academic article by Re, the University of Virginia law professor, “undersells the consequences of personal precedents for the court as an institution …[t]he endgame is an even more polarized Supreme Court with very little room for consensus and common ground.”
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