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Precedent and Judicial Method--Stuntz

The Supreme Court’s recent lethal injection decision, Baze v. Rees, reminds me of a puzzle. Supreme Court Justices, and appellate judges generally I think, often feel bound by previous case holdings and by the core reasoning that supports those holdings. But judges rarely defer to prior decisions about legal method. If, say, case 1 holds that a particular constitutional clause is to be interpreted based on its original understanding, judges who believe in evolving constitutional meanings feel perfectly free to ignore originalist arguments in case 2, arising under the same clause. All sides in contemporary legal debates do this: Justices Scalia and Thomas apply their preferred interpretive methods whether or not the most recent majority opinions in the area do so.

Why is that? If the point of precedent is to make the law predictable, then it would seem that decisions about legal method should receive more deference than simple case holdings, not less. And in the past, I think they did receive a good deal of deference: this willingness to reargue all methodological issues in every case strikes me as a phenomenon of the last generation or two at most, not the norm in American legal history. If I’m right about that—I may not be: I’d defer to the wisdom of any good legal historians out there—this strikes me as a change for the worse, and one that has large consequences for the way constitutional law develops.

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Comments ( 2 )

I'm not sure there really are that many exceptionally clear methodological precedents. When they get methodological, cases talk about the importance of text, structure, history, precedent, and policy, but generally don't try to come up with a theory about how exactly to reconcile them. For instance, I like the fixed-meaning, changing-application theory of Euclid v. Ambler Realty in 1926: "[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world it is impossible that it should be otherwise. . . . [A] degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles . . . ." But the Supreme Court has never cited this passage from Euclid since then. The Australian High Court has a much stronger tradition of elaborating a fixed-connotation, changing-denotation view of constitutional interpretation (see here at 576-79). But I just don't think the U.S. Supreme Court has very many canonical precedents on the methodology of constitutional interpretation (unlike, for instance, lots of precedents on the general methodology of statutory interpretation).

This article by Michael Paulsen might be of interest on this issue: Does the Supreme Court's Current Doctrine of Stare Decisis Require Adherence to the Supreme Court's Current Doctrine of Stare Decisis?