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.