America's Unwritten Constitution: The Precedents and Principles We Live By (40 page)

The precise persuasive weight of a past case will vary. Not all opinions of the Court came from the likes of John Marshall or Joseph Story. It may be relevant that a particularly sound justice dissented in the allegedly erroneous case. Sometimes, a later Court will find wisdom in certain language of a past case even if its result seems wrong on the facts. Other times, its fact-specific result may distill great wisdom even if its language, on reflection, does not persuade.

Also, if the current Court believes that the past Court did not err in interpreting the Constitution, but merely chose a suboptimal set of implementing sub-rules that nonetheless fell within the range of plausible implementations, the current justices may properly choose to let the matter stand. In this conceptual quadrant, the old case law rests on a view of the meaning of the Constitution that the current Court believes is the correct one. No infidelity to a justice’s oath occurs when she continues to build upon cases that are themselves firmly grounded in the written Constitution itself, rightly read.

But what if a current justice believes that a past case or line of cases misread—indeed, seriously misread—the written Constitution? Doesn’t
her oath of office oblige her to follow the Constitution and not the case? If the Court is generally obliged to strike down constitutionally erroneous statutes passed by Congress, why isn’t it equally obliged to overturn constitutionally erroneous precedents?

In 1992, these questions came before the Court in dramatic fashion as the justices openly considered whether to overrule
Roe v. Wade
, perhaps the most controversial case of the past half century. By the narrowest of margins, 5–4, the Court in
Planned Parenthood v. Casey
decided to reaffirm
Roe’s
central holding that women have a constitutional right to obtain early-term abortions. In passing, the
Casey
Court declared that “a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.” Asserting that such a view had been “repeated in our cases,” the Court thereupon cited two dissents, neither of which was squarely on point, leaving the careful reader with a sneaking suspicion that perhaps this view was not well established in pre-
Casey
case law.
¹⁹

Indeed, a survey of earlier doctrine reveals at least seven twentieth-century overrulings based simply on the belief that the prior case was wrongly decided. Several of these overrulings are household names, at least in legal households:
Erie v. Tompkins
(1938),
West Virginia State Board of Education v. Barnette
(1943),
and Jones v. Alfred Mayer
(1968). In other words, if read broadly,
Casey
’s dictum about precedent was virtually unprecedented, and indeed contrary to precedent.
²⁰

These seven pre-
Casey
precedents stand for the proposition that, absent certain special countervailing considerations (which we shall analyze momentarily), today’s Court may properly overrule yesterday’s case simply because today’s Court believes the old case incorrectly interpreted the Constitution. None of these seven overruling precedents has itself ever been overruled. These seven precedents span decades and cover a wide range of constitutional questions.
Casey
, by contrast, involved the hottest of hot-button issues—abortion rights, an area where the Court was under fire from critics and appears to have overreacted with ill-considered language. Thus, we should hesitate to read glib words in one case as repudiating first principles of previous case law and of the Constitution itself. Unless and until the Court emphatically and repeatedly reiterates that this
Casey
passage must be construed expansively—and thus far the post-
Casey
Court has said nothing of the sort—it makes sense to read the
Casey
dictum in a limited manner that would mesh with the case law (on case law) that
Casey
overlooked.
²¹

The
Casey
dictum may well be a sensible way of thinking about precedent in areas where questions of constitutional meaning are not at issue—that is, areas where the precedents on the books concern merely common-law issues or constitutional issues revolving around implementational sub-rules. In these areas, although today’s Court might choose to follow precedents that it now believes to be erroneous, the Court is not thereby privileging its own past pronouncements over the best interpretation of the Constitution itself.

Casey
can also be read as highlighting the fact that the vast majority of recent overrulings have been based not solely on the fact that the earlier case was wrongly decided as a matter of pure constitutional meaning, but also on other factors. These other factors have included the general unworkability of the old precedent (as made clear by subsequent experience), the old precedent’s inconsistency with other cases decided before it or after it, and the old precedent’s incompatibility with later factual developments. Perhaps
Casey
simply meant to say that when these factors exist, they should be stressed by the overruling Court.

But if these factors were the only ones justifying overrulings in cases involving constitutional meaning, we would be left with a vision of constitutional law more Court-centered than Constitution-centered: A case could be overruled if it did not fit well with other cases, but would be retained if it simply did not fit well with the document.

It is understandable that, for reasons of institutional prestige, the Court might prefer, when overruling itself, to do so on grounds that downplay admission of past error. Such an approach allows the current Court to say that the past case was perhaps sensible when decided, but has been eclipsed by later legal and factual developments that could not have been perfectly foreseen when the Court first acted.

Yet even as we strive to understand the Court’s institutional desire to avoid shouting from the rooftops that the Court itself has blundered badly in the past, we must also note the dangers of unchecked institutional self-aggrandizement.
(The Court of late has been fond of making sweeping assertions of judicial supremacy, regularly proclaiming itself the Constitution’s “ultimate” interpreter—a self-description that nowhere appeared in
Marbury
, and indeed never appeared in the
United States Reports
until the second half of the twentieth century.)
²²

If the justices generally felt free (or obliged!) to follow clearly erroneous case law concerning the core meaning of the Constitution, then the foundational document might ultimately be wholly eclipsed. Rather than simply filling the document’s gaps, judicial doctrine would erase its outlines. If the written Constitution indeed contemplated this odd result, one would expect to see a rather clear statement to that effect: “This Constitution may be wholly superseded by conceded judicial misinterpretations; all branches are oath-bound to follow these misinterpretations.” But the Constitution says nothing of the sort. On the contrary, it explicitly and self-referentially obliges all officials to swear oaths to itself, not to conceded misinterpretations of it.

The Constitution establishes a system of coordinate powers. If neither the legislature nor the executive may unilaterally change the document’s meaning, why may the judiciary? The Constitution details elaborate checks and balances. If conceded misinterpretations become the supreme law of the land, what checks adequately limit judicial self-aggrandizement? Prior to the Constitution’s ratification, none of its leading friends put forth anything like the
Casey
dictum, broadly read. Rather, the basic structure of the document suggested to ratifiers that whatever “We the People” deliberately laid down could not be changed, except by a later amendment reflecting wide and deep popular approval.

In the case that the modern Court views as the very fountainhead of judicial review,
Marbury v. Madison
, Chief Justice Marshall declared that the American people’s “original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness” was “the basis on which the whole American fabric has been erected.” Marshall went on to observe that “[t]he exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom
act, they are designed to be permanent.” Given that acts of constitution and amendment require great popular exertion that cannot be expected to occur routinely, it seems perverse to insist that We the People must repeat what We said whenever judges garble what We said the first time.

Simply put, the basic structural argument against a broad reading of the
Casey
dictum is that
Marbury
-style judicial review presupposes that judges are enforcing the people’s document, not their own deviations. Departures from the document—amendments—should come from the people, not from the high court. Otherwise we are left with constitutionalism without the Constitution, popular sovereignty without the people.

DOES A PROPER VIEW OF THE CONSTITUTIONAL SYSTEM,
then, require that whenever the current Court believes that a past case misinterpreted the central meaning of some part of the Constitution, the justices must overrule the erroneous case? Not quite. Two moderating structural ideas come into play, both of which can be understood as “equitable” considerations that the Judicial Article allows to be taken into account. (That article features language explicitly empowering federal courts to hear cases “in Law and Equity” arising under “this Constitution.”)
²³

One structural and equitable notion may be stated as follows: Once We the People have struggled to put a rule or principle in the document, that rule or principle should not be altered, except by the people themselves. An erroneous precedent that improperly deviates from the written Constitution may in some situations stand if the precedent is later championed not merely by the Court, but also by the people. When the citizenry has widely and enthusiastically embraced an erroneous precedent—when even most initial skeptics have deemed the precedent to be fundamental and admirable—a court of equity may sometimes, consistent with the document’s emphasis on popular sovereignty, view this precedent as sufficiently ratified by the American people so as to insulate it from judicial overruling. This is especially true if the erroneous precedent recognized an unenumerated right before its time. If this right then catches fire and captures the imagination of a wide swathe of citizens, it thereby becomes a proper Ninth Amendment entitlement even though the Court (by hypothesis) jumped the gun.

As we have seen, unenumerated constitutional rights retained by the people under the Ninth Amendment (and the Fourteenth Amendment’s privileges-or-immunities clause) encompass, among other things, those basic rights that the people at large in fact believe that they have and should have under the Constitution. If enough people believe in a given right and view it as fundamental, then that right is for these very reasons a right of the people, a basic privilege of citizenship as understood by citizens themselves. It usually does not matter how the people’s belief arose—even if it arose as a result of a Supreme Court case that was wrong as a matter of text and original intent when decided.

Thus, if the Court at time T1 gets the Constitution’s text and original understanding wrong and proclaims a right that does not in fact properly exist at time T1, and if the vast majority of Americans come to rejoice in this right, the Court at time T2 should affirm the originally erroneous precedent. The case, though wrong when decided, has become right thanks to an intervening change of fact—broad and deep popular endorsement—that the Constitution’s own text, via the Ninth and Fourteenth Amendments, endows with special significance. Note one key asymmetry: A case that construes a textual constitutional right too narrowly is different from one that construes the right too broadly. Even if both cases come to be widely embraced by the citizenry, only the rights-expanding case interacts with the text of the Ninth and Fourteenth Amendments so as to specially immunize it from subsequent reversal.
²⁴

A second equitable principle, prominent in judicial decisions stretching back hundreds of years, directs judges to give due weight to the ways in which litigants who come before the Court may have reasonably relied upon prior case law. Judicial power, by its nature, is retrospective. The judiciary applies law to transactions that have already occurred. Erroneous precedents create facts on the ground that properly influence the application of retrospective judicial power. In some cases, these facts limit the Court’s ability to abruptly change course, even if persuaded of past error. For example, even if the Court were tomorrow to deem erroneous its longstanding precedents upholding the constitutionality of paper money, surely the justices could not ignore the vast economic system that has built up in reliance on paper.
²⁵

Erroneous precedents are not unique in this respect. Prior unconstitutional conduct of other branches may likewise create
faits accomplis
that courts cannot easily undo after the fact. Unlike a broad reading of the
Casey
dictum, which treats erroneous Court precedents with more deference than erroneous statutes, a sound structural and equitable approach would respect the general coordinacy of the three branches and would recognize that judges must have due regard for facts on the ground created by prior actions of all branches and levels of government. This feature of judicial underenforcement is built into the very structure of the Judicial Article, under which judicial review can sometimes occur long after certain practices have become settled and virtually impossible for courts to reverse.