Abstract
This chapter assesses the Supreme Court’s reluctance to give stare decisis effect to its methodologies of constitutional interpretation. While the Court claims to presumptively follow the substantive results of its prior constitutional decisions, it has never considered itself bound by the interpretive approaches (e.g., originalism, textualism, or “living constitutionalism”) used to reach those decisions. The author suggests an explanation for this somewhat mysterious state of affairs. A rule of methodological stare decisis would require the Court to employ the same interpretive method in a huge category of cases (e.g., all cases involving the Constitution), which would generate unpredictable results in many cases the Court could not reasonably anticipate, thus aggravating the drawbacks of stare decisis. At the same time, the usual benefits of stare decisis (such as predictability and stability) would not be very well served by methodological stare decisis. In contrast, the Court can reasonably follow precedent regarding constitutional “decision rules”—methods for implementing the Constitution, such as tiers of scrutiny—because those rules are relatively determinate and can be contained within narrowly defined areas of substantive doctrine.
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Notes
- 1.
554 U.S. 570 (2008). The Court in Heller concluded that the Second Amendment creates an individual right to possess firearms for, among other things, self defense in the home.
- 2.
381 U.S. 479 (1965). The Court in Griswold grounded a right to purchase and use contraceptives in a “zone of privacy” created out of penumbras emanating from many of the rights expressly protected in the Bill of Rights.
- 3.
“Although methodological disputes grow heated in some cases, it is striking that in the domain of constitutional adjudication, the justices have seldom exhibited much interest in attempting to bind themselves or each other, in advance, to the kind of general interpretive approaches that academic theorists champion” (Fallon 2009, 1013).
- 4.
The argument might run something like this: The type of reasoning involved in selecting a methodology is distinct from the type of reasoning involved in resolving a substantive legal question, in that the latter typically involves the application and manipulation of a variety of authorities and types of reasoning in the context of resolving a dispute over the content of a legal standard. Those authorities are generally regarded as providing imprecise guidance, and are backed up by a cluster of procedures and norms of the sort identified by Karl Llewellyn (1960, 19–51) in his catalog of “major steadying factors” in appellate adjudication. This, taken as a whole, constitutes judicial reasoning, the sort of thing that becomes engrained via a process that begins in law school and continues through practice, and is thereby something to which judges may legitimately claim some expertise. The choice of an interpretive methodology, in contrast, is prior to or at least separate from all of that. In its most important aspects it entails political reasoning rather than legal reasoning, and therefore it is not the sort of thing that can be verifiably better or worse in the way that we might say that legal reasoning can be.
- 5.
505 U.S. 833, 865 (1992).
- 6.
Id. at 866.
- 7.
541 U.S. 36 (2004).
- 8.
“In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him” (U.S. Const., amend. VI).
- 9.
448 U.S. 56 (1980).
- 10.
Id. at 66.
- 11.
541 U.S. at 42.
- 12.
Id. at 50.
- 13.
Id. at 53.
- 14.
Id. at 57.
- 15.
Id. at 60.
- 16.
Id. at 59 n.9.
- 17.
547 U.S. 813 (2006).
- 18.
554 U.S. 353 (2008).
- 19.
129 S. Ct. 2527 (2009).
- 20.
131 S. Ct. 1143 (2011).
- 21.
Id. at 1156.
- 22.
Part II of the Court’s opinion traces the history of the recent development of the Court’s Confrontation Clause jurisprudence, beginning with Crawford’s overruling of Roberts and ending with the Court’s statement of how the issue presented in Bryant differed from those in previous cases. Id. at 1152–56. Throughout, the Court treats the cases in the Crawford line as authority that it is following.
- 23.
Id. at 1167 (Thomas, J., concurring in the judgment).
- 24.
Id. at 1168 (Scalia, J., dissenting).
- 25.
Id. at 1174.
- 26.
Id. at 1175.
- 27.
Id.
- 28.
The more recent Confrontation Clause case of Williams v. Illinois, 132 S. Ct. 2221 (2012), also shows the Court’s lack of concern for the maintenance of methodological consistency. Of the four opinions in the case, only Justice Thomas’s concurrence engaged in any deep way with materials bearing on the original understanding of the Confrontation Clause. Id. at 2255. For the first time in this line of cases, Justice Scalia did not write an opinion, and joined Justice Kagan’s dissent instead.
- 29.
For a critique of the deontological justifications, see Peters (1996).
- 30.
Washington v. W.C. Dawson & Co., 264 U.S. 219, 238 (1924) (Brandeis, J., dissenting).
- 31.
Though, as noted above, this distinction is much more apparent when the methodology for discerning the operative proposition is textualist or originalist in nature.
- 32.
This concern motivated Justice O’Connor’s one-paragraph partial concurrence in Michael H. v. Gerald D., 491 U.S. 110, 132 (1989), which marks one of the few times concern about something akin to methodological stare decisis has appeared in an opinion. In it, she declined to join Justice Scalia’s preferred approach to due-process analysis, noting, “I would not foreclose the unanticipated by the prior imposition of a single mode of historical analysis.”
- 33.
In the Legal Tender Cases, 79 U.S. 457 (1870), the Court reversed its prior holding that paper money violated the Constitution. Most scholars regard the constitutionality of paper money as clearly inconsistent with original understanding (Monaghan 1988, 744). See also Larry Alexander’s engagement with the Legal Tender Cases in Chap. 3 of this volume.
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Oldfather, C.M. (2013). Methodological Stare Decisis and Constitutional Interpretation. In: Peters, C. (eds) Precedent in the United States Supreme Court. Ius Gentium: Comparative Perspectives on Law and Justice, vol 33. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7951-8_8
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