Precedent on the High Court
Part Two of a Three-Part Series on Stare Decisis
December 27, 2002
By Akhil Reed Amar and Vikram David Amar
What kind of weight should the Supreme Court give its
past decisions? In particular, should the Court this Term reaffirm its earlier
decisions in Regents v. Bakke, and Bowers v. Hardwick?
These are among the biggest questions facing the Justices
as they approach this Term’s most watched cases, involving affirmative
action at the University of Michigan and a same-sex sodomy law in Texas.
In our last column, we described the Rehnquist Court’s
general approach to precedent, as exemplified in the 1992 case of Planned
Parenthood v. Casey. In Casey, the Court insisted that it should follow its
own earlier precedents—even precedents that (in the eyes of a current
majority) misconstrued the Constitution itself—unless there were some
special reasons for overruling, above and beyond the plain error of the
In response to this Casey test, we began to sketch out a
narrower vision of stare decisis. The Constitution, not the case law, is the
supreme law of the land. If the case law conflicts with the Constitution, why,
we asked, should the case law prevail?
Today, we consider one traditional
answer—reliance—and apply this reliance framework to the Michigan and
Texas cases. In a future column, we will consider a few more intriguing issues
that may arise when the Court tries to assess the precedential weight of Bakke
Judicial Power and Reliance Interests: A General
Judicial power is by its nature retrospective; the Court
applies law to factual circumstances that have already occurred. Erroneous
precedents themselves are part of the factual backdrop against which the Court
decides a current case. Thus, they are part of the “facts on the ground”
that properly influence the application of retrospective judicial power.
These facts may in some instances limit the ability of
the Court 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
Erroneous judicial precedents are not unique in this
respect. Prior unlawful or even unconstitutional conduct of other branches may
likewise create faits accomplis that courts cannot easily reverse afterwards.
When a President commits troops or makes deals with other countries, for
instance, even in arguable violation of international law or the Constitution,
there may well be little that courts can do to immediately nullify or limit
the effect of such Presidential usurpations.
An unconstitutional federal statute might likewise create
strong institutional realities that cannot be ignored or immediately undone by
judges, as John Marshall noted at the outset of his famous 1819 decision in
McCulloch v. Maryland.
This feature of judicial underenforcement is built into
the very structure of Article III, in which judicial review can sometimes
occur long after certain practices have become settled and virtually
impossible for courts to reverse. Some mistakes simply cannot be easily
rectified right away.
But that does not mean that we must live with—and keep
repeating and reaffirming—mistakes forever. When the Court makes a mistake
in interpreting the Constitution, and later admits making the mistake, there
are often ways that the other branches of government can structure things
going forward in a way that is more consistent with the proper constitutional
Importantly, these other branches of government may be
able to return to a constitutionally proper regime by acting purely
prospectively in a way that judges sometimes should not or cannot, because of
their inherently retrospective character.
Imagine, for example, a legislature that responds to an
entrenched judicial misinterpretation of the Constitution by enacting a
statute calling for a gradual ten-year phase-in of a new regime that would be
more consistent with first constitutional principles.
Were the Court to announce such a phase-in on its
own—”the constitutional rule is X today, Y next year, and Z in ten
years”—this announcement might raise serious questions about impermissible
judicial “legislation.” But it is not likewise problematic for a
legislature to legislate new rules; that, after all, is what legislatures are
supposed to do.
In situations like this, it is crucial for judges to tell
us if they have indeed erred in the past so that the other branches may
properly ponder their constitutionally permissible options. Justices, of
course, may not relish confessing error, but they have no proper warrant for
refusing to do so when called to account.
Notwithstanding recent self-serving pronouncements of
judicial supremacy, other branches of government have important roles to play
in constitutional conversation, and the success of this conversation depends
ultimately on good faith and candor on the part of all participants, including
The Court’s duty, then, is not, as Casey would have it,
to affirm and extend precedent without deciding whether it is right or wrong.
Rather, it is first to admit error whenever the Court finds that error has
occurred, and then to consider whether special reliance factors apply and how
those factors might constrain the ability of the Court, and perhaps other
branches as well, to set things right.
Applying the Framework: Bakke
Now apply all this to Bakke and Bowers.
Bakke first. On a technical level, it’s worth
emphasizing that one part of Justice Powell’s opinion (Part V.C) was joined
by four other Justices. In this section, Justice Powell spoke not just for
himself but for the Court. And in that section, the Court reversed the lower
court—which had prohibited all race-conscious admissions programs—and
declared that public universities could indeed use non-quota plus plans, a la
Harvard, that explicitly involved “competitive consideration of race and
This is Bakke’s core technical legal holding—quotas,
no; Harvard-style pluses yes. And this is the constitutional interpretation
that the American public and many public and private universities have indeed
internalized and relied upon in fashioning important aspects of American
education policy. An entire generation of Americans has been schooled under
Bakke-style affirmative action, with the explicit blessing of—indeed,
following a how-to-do-it manual from—the U.S. Reports.
And the issue is not merely limited to public
universities. Title VI of the 1964 Civil Rights Act applies to the vast array
of private schools and universities that receive federal funds. In the past,
Title VI has been construed to hold these private schools to the same
standards applicable against public universities via the Fourteenth Amendment.
If the current Court were to overrule Bakke’s
interpretation of the Fourteenth Amendment by banning modest plus-systems, and
then were to apply the same rules to all private universities receiving
federal funds, a sharp resegregation of higher education might occur. The
possible institutional dislocations and social upheavals are rather startling
Of course, much the same might have been said in 1953
about the dislocations and upheavals likely to result from overruling Plessy
v. Ferguson. Perhaps in light of all this, the Court did try to phase in its
remedies via the notorious “all deliberate speed” formula. Also, in the 15
years before Brown v. Board of Education, the Court in a series of decisions
had begun to signal its willingness to move away from Plessy. For this and
many other reasons, the defenders of Jim Crow could hardly claim to be utterly
unprepared for an eventual repudiation of Plessy.
Arguably, various Justices over the last dozen years have
likewise been sending signals that Bakke was perhaps mistaken and should not
be taken for granted. In a series of cases over the last decade involving
race-based affirmative action in the business, as opposed to educational,
setting, some Justices have used broad language to condemn a variety of
race-conscious governmental programs
At the end of the day, then, whether reliance interests
argue strongly in favor of Bakke depends in part upon how broadly or narrowly
we should read the more recent post-Bakke cases involving non-education
affirmative action arenas. We’ll return to some of these issues in a future
Applying the Framework: Bowers
As far as reliance is concerned, Bowers is much easier.
In 1986, the Bowers Court upheld a Georgia criminal law that prohibited
sodomy. In doing so, the Court rejected a challenge brought by a homosexual
man who argued that he had a privacy right under the due process clause of the
Fourteenth Amendment to engage in consensual sodomy in his own home.
If a majority of today’s Justices think that Bowers was
wrongly decided on its facts, it is hard to see any strong reliance argument
that should stand in the way of repudiating the decision.
First, the Texas statute at issue this Term, unlike the
Georgia law, expressly prohibits only same-sex sodomy. That gender-based
trigger raises equal protection claims that are being actively pressed in the
Texas case, but that were explicitly left open by the Bowers Court. No one can
reasonably rely on something the Supreme Court itself says it is leaving open.
Second, and more generally, it is not clear how state
legislatures (or the majorities of voters who support them) might have relied
on Bowers, in any event. None of the (relatively few) anti-sodomy statutes
enacted by states were adopted after Bowers in reliance on any roadmap for
legislation that Bowers set up. Indeed, the trend since Bowers in various
states has been to de-criminalize sodomy.
Also, important post-Bowers cases like Romer v. Evans and
United States v Virginia (the VMI case)—not to mention Casey itself—have
arguably departed from Bowers in key ways, and thus further undercut any
possible reliance argument in this area of law. In Romer and Casey, the Court
rejected the dissenting Justices’ broad readings of Bowers, and in all three
cases, the Court used equality principles to strike down state practices
reflecting strongly traditionalist views of sex and sexuality.
In sum, even if Bakke were seen as wrongly decided, there
are important reliance reasons for judges to go slow in imposing a new legal
regime. But no similarly strong reliance interest applies to Bowers.
Akhil Reed Amar and Vikram David Amar are brothers who
write about law. Akhil graduated from Yale College and Yale Law School,
clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram
graduated from U.C. Berkeley and Yale Law School, clerked for Judge William
Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of
Law. Their “brothers in law” column appears regularly in Writ, and they
are also occasional contributors to publications such as the New York Times,
the Los Angeles Times, and the Washington Post. Jointly and separately, they
have published over one hundred law review articles and five books.
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