Bolling v. Sharpe reconsidered: precedent, original meaning, and prudence (part 1)

Meditating on Massachusetts v. EPA last year, one of the cases I discussed was Adarand v. Pena, which focuses on the equal protection obligations of the federal government. I dropped a footnote observing that I was setting aside for sake of argument my objections to the so-called "equal protection component" of the Fifth Amendment, a doctrinal fixture since the Supreme Court peremptorily announced it in Bolling v. Sharpe. While that essay dodged the Bolling bullet, a section of the respondent's brief filed recently in Heller makes me think that the time for me to grapple more seriously with Bolling has probably arrived.

For the sake of readability, I have very reluctantly split this essay into two posts. This post is mainly intended to set the stage: it walks the reader through some of the background with which I arrived at the Heller brief. Part I briefly summarizes Bolling and my previous statements with regard to it; part II assesses at my earlier posts about stare decisis and probes the pronouncements of Justice Scalia on the doctrine. Part III notes additional influences on my thinking on stare decisis. The second post (which is more-or-less already written, I should emphasize, and should make landfall next week) will evaluate Bolling in light of the precepts set out in parts II and III and draw conclusions. I've also tried to keep this as relatively accessible to non-legal readers as I can.

In Bolling, the court concluded that if "the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." It rested on no more reasoning than that "the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive" and that "discrimination may be so unjustifiable as to be violative of due process." The Fifth Amendment, which by its own force, constrains only the actions of the federal government, and requires only due process; the Fourteenth Amendment, which does require both due process and equal protection, by its own terms binds only state governments. However, these awkward textual limits evanesced in the face of strong incentives to reach the "right" result; the court effectively held that the Fourteenth Amendment not only applies the bill of rights against the states, but sub silentio adds a proviso to the Fifth Amendment and then redundantly reiterates this secret clause so far as it applies to the states.

I've long thought that this conclusion was more-or-less indefensible as a matter of text or even reason; "gibberish[,] both syntactically and historically," as John Hart Ely unkindly but not inaptly put it.1 If the generally-held public meaning of "due process of law" at the time of the amendment's drafting had regarded the concept of equal protection to be submerged in that requirement -- a necessary assumption of any legitimate defense of Bolling -- it would have been nugatory for the amendment's framers to express such a requirement separately from their requirement that states afford due process. Adequately put: "why does the Fourteenth Amendment contain an Equal Protection Clause if the text of its Due Process Clause has the same effect?"2 The text simply won't "bear the meaning tendered,"3 and Bolling's argument for itself reduces to the hope that, in so emotionally charged a context, the reader will forget that far from being "unthinkable," it was then and is now unremarkable to think that the federal government operates under different restraints to those incumbent on the states. Michael McConnell, for example, "finds it not just 'thinkable' but highly plausible that the framers of the Fourteenth Amendment sought to put equal protection restrictions on the states that they did not seek to put on the federal government...."4 We needn't go quite that far; the point is that the conclusion may be "unthinkable,"5 but it follows inexorably from a fair reading of the text. In my view, the received wisdom that Bolling is indistinguishable from Brown holds only

if one focuses on the result not the reasoning (or, more precisely, if one thinks, pars pro toto, that the result is the case)[.] Brown was not judicial activism because it correctly and courageously applied the Fourteenth Amendment to the laws at hand and found them wanting; Bolling, however, was judicial activism because in order to find the laws wanting, and the District of Columbia being governed by the Fifth Amendment not the Fourteenth, the Court was forced to read the Fourteenth Amendment's equal protection clause into the Fifth Amendment, which so readily apparently lacks one.

Now, perhaps this is a conceit, but I think that I make every effort to be consistent. Or, at least, to openly admit inconsistency if it happens. it's necessary to consider what I've said before about Bolling and about and stare decisis. As to the former: I've been on record with this position since my earliest days in the blogosphere. Although it doesn't automatically follow from the view that a case was wrongly-decided that the case ought to be overruled, within the last year I've written several posts and comments implying the view that Bolling should be at least narrowed if not outright overruled,6 and little over a year ago, I said outright that I'd overrule it. Nevertheless, since then, "I have acquired new wisdom[,] ... or, to put it more critically, have discarded old ignorance."7 [Read on]

I've been less less categorical in what I've written about stare decisis. It is, I've said, "both an integral part of the American common law tradition and, for a conservative, a normative good."8 If it's not necessarily an integral part of the judicial power granted by Article III as some have argued (more on this anon), then [is] at least so firmly embedded in American judicial practice as to be exoconstitutional. At very least, I've said, in a case implicating a provision of the Constitution where originalism is indeterminate or underdetermine (functionally, that is, when the original meaning can't be ascertained with a reasonable degree of confidence or doesn't answer the particular question presented), if precedent provides an answer, stick with that answer, even if it isn't perhaps the very best conceivable answer. "[W]hen we dive in murkier waters, where the [Constitution's] command is less plain, we should be guided by the ropes of the unenunciated structures and principles that undergird and are presupposed by the Constitution, and by the lights of our forebears: by tradition, and by precedent."9

The foregoing isn't very helpful with regard to Bolling, however. All the usual tools of constitutional interpretation and construction to which the legalist and sympathisers of the legal process school10 might turn leave little doubt in my mind that Bolling was wrongly-decided as an original matter. But that can hardly end the inquiry; after all, as Justice Scalia has pointed out, although "proper application of stare decisis [does not] prevent[ ] correction of [a] mistake,"11 stare decisis does require that "[w]ho ignores [precedent] must give reasons, and reasons that go beyond mere demonstration that the overruled opinion was wrong (otherwise the doctrine would be no doctrine at all)."12 So, we need something else: a standard for applying stare decisis to cases that are concededly wrongly-decided.

I've written on that issue, too. In particular, two recent posts and comments below them sketched a dim outline of my views, or at least alluded to some of the factors bearing on the decision to overrule vel non. Three main considerations emerge from those posts. First, has the holding become so deeply-embedded that even if it was dubious as an original matter it shouldn't be overruled - that is, has it achieved broad acceptance? ("Broad acceptance" is an aggravatingly amorphous standard: it must mean something far more than a mere majority, yet "is not quite the same as absolutely universal acceptance.") Second, does the case - and the case itself - foster legitimate reliance interests?13 And third, perhaps most importantly: does the case exert a "corrupting influence on surrounding law"?14

Two and-a-half other considerations that I've articulated in drafts and private correspondence, but not to my recollection written about in published posts, should also be mentioned. (I say "two-and-a half" rather than "three" because there's two points that are very much two sides of the same coin.) One, whether a decision can at least be reconciled with the text, even if its articulated rationale is shaky (Brown v. Board is a good example). Two-A, a case that announces a fairly specific rule may be more defensible than one that's quite general or abstract - "Judges should be shy about taking any rule at a high level of generality. Exceedingly general rules, coupled with the understanding that judges have the power to interpret the law, transfer effective legislative power to the courts,"15 whereas prominent in - perhaps central to - the legal process school is the idea that "because the judiciary is not elected, it should not upset value choices made by the democratically elected legislature. Unless the Court c[an] justify its decisions according to reasons that are neutral to competing groups and interests, it must defer to legislative choice."16 Two-B, whether the case is not only relatively specific, but also relatively rule-like; a precedent providing a rule that is "clear and capable of consistent application,"17 or a test can be objectively shown to have been met or failed,18 is far more defensible than one that provides a mushy standard or complex balancing test.19 As Justice Scalia put it in his Itel Containers v. Huddleston concurrence, "the principal purposes of stare decisis ... are to protect reliance interests and to foster stability in the law," purposes that are ill-served by "vague and open ended tests ... [that are] uncertain in their application (and in their anticipated life span)."

That dovetails quite neatly into talking about Our Hero and stare decisis. As Justice Scalia indicated in his Lawrence dissent, "the Scalian school of jurisprudence counsels adherence to stare decisis, but not rigidly so." In a speech we noted here, Scalia reportedly suggested three primary criteria that affect his willingness to overrule a case. Was the decision willfully wrong? Has it been "generally accepted" (paradigmatically the incorporation doctrine)? And, does the case invite judges to act as legislators, as opposed to articulating a legal standard cognizable by courts, one capable of principled and consistent application? Other general Scalian considerations: is a precedent a "standing invitation to judicial arbitrariness and policy-driven decisionmaking," as Scalia labeled the City of Boerne "congruence and proportionality" test in his Tennessee v. Lane dissent? Does the case, as he said in his Payne v. Tennessee concurrence, "impos[e] a constitutional rule that ha[s] absolutely no basis in constitutional text, in historical practice, or in logic"? In Hubbard, supra, Scalia wrote that "stare decisis protects the legitimate expectations of those who live under the law, and, ... is one of the means by which exercise of an arbitrary discretion in the courts is restrained." In that case, Scalia accepted that a valid reason to overrule a case is when it "has unacceptable consequences" that can be avoided only by overruling a case or by limiting it "in a manner that is irrational or [that] import[s] exceptions with no basis in law,"20 at least where reliance interests are minimal or nonexistent (Allied-Bruce Terminix may finesse this point somewhat). Although not made explicit, in context the "unacceptable consequences" Scalia had in mind appeared to be the results of the earlier case's failure to articulate the sort of rule-like analytical framework capable of principled and consistent application noted above.

Of course, Scalia will disregard precedent, and will do so in broad strokes when necessary -- he doesn't "believe it necessary to disassemble what he considers erroneously decided precedent 'doorjamb by doorjamb.'"21 As he noted in Payne v. Tennessee, it "would enshrine power [rather than reason] as the governing principle of this Court i[f] the notion [prevailed] that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes."22 Some commentators have suggested that the way to understand Scalia's approach to precedent is through the lens of his broader concern for tradition:

Precedent overlaps tradition[ but] it is not subsumed by it. Some precedents may be said to be part of a tradition. But not all are. Some are simply the decisions of a group of judges rendered a few years ago. Burke's injunction -- not to cast aside the accumulated wisdom of generations, gained through trial and error, in favor of abstractions -- does not call for such precedents to be sustained. On the contrary, it calls for them to be discarded.23

More support for that idea might be found in his dissent in Mitchell v. United States. Scalia wrote that if a rule "has found wide acceptance in the legal culture and has even become an essential feature of our legal tradition" (internal quotation marks omitted), that fact provides "adequate reason" not to overrule the cases propounding those rules, albeit, though, not to conversely "extend these cases into areas where they do not yet apply ... [when] neither logic nor history can be marshaled in defense of them." The limits of Mitchell are obvious: how does one ascertain that a case is an essential feature of our legal tradition, and what would become of a case that doesn't meet that threshold yet has undeniably "found wide acceptance in the legal culture"?24 As noted recently, the Dickerson court cited this passage in support of not overruling Miranda - and did so over Scalia's dissent.

Speaking of Payne, in that case, Chief Justice Rehnquist, writing for the court, spoke directly on stare decisis. It is "the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Still, the court said, a decision may be cast aside if it is "unworkable or [is] badly reasoned" and "ha[s] defied consistent application by the lower courts," particularly cases "decided by the narrowest of margins, over spirited dissents challenging the basic underpinnings" and are subject to ongoing dissent (a requirement the court jettisoned in Casey - "to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question"). Reiterating Brandeis' famous phrase, the court said, "stare decisis is not an inexorable command; rather, it 'is a principle of policy and not a mechanical formula of adherence to the latest decision.'" In Patterson v. McLean, the court noted that "precedents are not sacrosanct" and although special justification is needed, they can be overruled "where the necessity and propriety of doing so has been established." Particularly in statutory cases, where "stare decisis is at its absolute zenith," the court has primarily overruled cases only when they are "positive detriment to coherence and consistency in the law" or "intervening development of the law, through either the growth of judicial doctrine or further action taken by Congress ... [that] have removed or weakened the conceptual underpinnings from the prior decision, or where the later law has rendered the decision irreconcilable with competing legal doctrines or policies...." (citations omitted). A case is vulnerable where subsequent doctrine has left it an outlier, "helpless and alone, drifting out to sea."25

Also useful is Justice Breyer's dissent in Leegin Creative Leather Products v. PSKS. Breyer summarizes several factors that bear on whether a concededly wrongly-decided case should be retained; as relevant here, "the Court does sometimes overrule cases that it decided wrongly only a reasonably short time ago," particularly if it "unsettles the law"; "the fact that a decision creates an unworkable legal regime argues in favor of overruling" while "the fact that a rule of law has become embedded in our national culture argues strongly against overruling" (emphasis added) (internal quotation marks omitted).

Four other voices that have influenced my thinking should be noted here: Bork, Strang, Barnett and Calabresi.

I said at the start of part II that determining that a case was wrongly decided is to only ask the question of stare decisis, not to answer it, and Judge Bork picks no fight with that. He argues that the originalist judge, faced with a precedent she concludes was wrongly-decided, still "faces additional considerations," and it was as "obvious" to Bork that an originalist judge "should not attempt to undo all the mistakes made in the past" as it was that she should not "deform the Constitution further."26 A decision may "have become so embedded to the private and public expectations of individuals and institutions that the result should not be changed now"; for example, Bork thought it "too late to overrule not only the decision legalizing paper money but also those decisions validating certain New Deal and Great Society programs pursuant to the Congressional powers over commerce, taxation and spending. To overturn these would be to overturn most of modern government and plunge us into chaos."27 However, he offered the counterexample of the economic substantive due process cases: "[i]t was never too late to overrule the line of cases represented by Lochner, because they were unjustifiable restrictions on governmental power, and allowing additional regulation of economic matters did not produce any great disruption of institutional arrangements."28 (That's not a million miles from what Professor Schwartz is getting at, I think; see infra part V.B).

Like Scalia's Mitchell dissent, noted above, Bork did say that generally, wrongly-decided precedents that the judge determines shouldn't be overruled ought to be limited. "To say that a decision is so thoroughly embedded in our national life that it should not be overruled, even though it is clearly wrong, is not necessarily to say that its principle should be followed in the future."29 So, Bork said, just because the court has allowed the Congress to slip through all restraints on its powers over commerce, taxing and spending, that may mean that it's too late for the court to place limits on commerce, taxing and spending (this was written between Garcia and Lopez), but that alone doesn't mean that the court shouldn't accept any limits on Congress' other powers in the future. An example of how we might go about "limiting" a precedent might be the other side of Scalia's Itel Containers standard, which I tabled above until here: if the challenged law is essentially indistinguishable from a law struck down by the court in an earlier case, Scalia will adhere to the earlier case, but a law that's similar but not a solid fit - it might be within the compass, yet not the holdings, of earlier decisions - will be evaluated on its textual merits.

Put another way, suppose we think Heart of Atlanta Motel (which, for non-legal readers who've braved it this far, upheld the Civil Rights Act as a valid act of Congress' regulatory power over interstate commerce) was wrongly-decided: stare decisis may require that we accept the broad conception of the commerce power, but fealty to Heart of Atlanta Motel's holding that Congress had that power doesn't vindicate broad congressional power to waive state sovereign immunity for violations of the Civil Rights Act, which was passed under Article I powers. So you narrowly construe the earlier precedent's reach and uphold that. The only catch with that is that you can get into the generality trap; as Judge Easterbrook has noted, one can read a statutory or constitutional provision at several levels of generality,30 and there's no reason to think that doesn't apply to reading precedents, either. That's not exceptional; Justices argue all the time over how broadly to read a precedent. Did Brown v. Board declare de jure racial segregation in state schools unconstitutional (specific), racial segregation, de jure or de facto, unconstitutional (more general), or mandate that state governments must conduct their activities in a colorblind fashion (quite high level of generality)? That question of generality was the whole ball game in the Parents Involved case. In practice, to merge these two thoughts, "limiting" a case in the sense that Bork means (if there's going to be a coherent distinction from overruling it) probably means reading it at the lowest possible level of generality, or rather, the highest possible level of specificity, even if the decision itself suggests a more general applicability. So, should we wish to limit Bolling, we might read it to say that the Fifth Amendment prevents the federal government from operating schools in the District of Columbia that impose a de jure racial segregation (perhaps a clearer example would be that if we wanted to limit Coker, we could say that it bars only the death penalty for the rape of an adult woman, which I've argued before is an artificially specific reading).

In Trumping Precedent With Original Meaning: Not As Radical as it Sounds,31, Professor Barnett took a different tack. He argued that the restraints of a specifically written constitution are a major structural feature of our Constitution, and that the Constitution would be "undermined if any of the branches of government, either alone or together, could alter and weaken the written limitations which have been imposed upon them." Look, said Barnett: "[t]he normative case for originalism is based, in large measure, on the superiority of the enacted text over the opinions of the branches of government that it is supposed to govern and limit - including the Supreme Court. An originalist simply could not accept that the Supreme Court could change the meaning of the text from what it meant as enacted and still remain an originalist." Consequentially, "[w]here a determinate original meaning can be ascertained and is inconsistent with previous judicial decisions, these precedents should be reversed and the original meaning adopted in their place."

One answer to that is that stare decisis isn't part of originalism, but a pragmatic exception to it.32 Another answer is: what if originalists had to consider stare decisis? In his article An Originalist Theory of Precedent,33 Professor Strang joined the debate over whether stare decisis was so well-embedded in the Common Law by 1789 as to form a part of the original understanding of “the judicial power” granted by Article III.34 I initially found Strang's thesis persuasive, at least to the extent that it identified a need for originalists to form a coherent theory of stare decisis, although I didn't agree with Strang's own proposed theory and toyed inconclusively with various alternatives. For various reasons, I've since bitten the bullet and conceded that Strang's account may be less persuasive than I thought," but it's not an outlandish theory. After all,

[t]he Constitution was adopted not in a vacuum, but against the background assumptions of the common law ... [which can] throw into relief content in the Constitution that is not explicit in its text. For example, the Supreme Court has held that although the words "knock and announce" appear nowhere in the text of the Fourth Amendment, that amendment was adopted against a common-law background that included certain assumptions, and so "the common-law knock and announce principle forms a part of the Fourth Amendment reasonableness inquiry."35

On the other hand, even if stare decisis is implicit in Article III, in much the same way as is the power of judicial review,36 it clearly doesn't survive ratification in its pristine pre-1789 form. Even if originalists had to account for a constitutionalized stare decisis, that doctrine would have to account for the collision between the common-law doctrine and the existence of a paramount authority that it had never previously had to co-exist with: a written constitution that purports to be the supreme law of the land.

That tension has attracted notice from our most distinguished scholars. Professor Calabresi has argued that, even with "long-standing [precedent], the Court is duty bound to decide the constitutional question according to the original meaning of the text without regard to precedent or doctrine" and has in fact usually done just that. In The Tradition of the Written Constitution: Text, Precedent, and Burke,37 Calabresi assembled a formidable case that the court's practice in the last century was to overrule precedent in favor of the text of the Constitution: "on every big constitutional issue of the last 68 years[,] the court has followed the document not the doctrine." The Supreme Court "frequently overrules even major precedents invoking constitutional text as its reason for doing so." Only in the context of abortion has this not been true. It's Casey that is the outlier, Calabresi argues (I think rightly): more typical are the overrulings of precedent in favor of text in Lochner-Adkins, Tyson v. Swift, Plessy v. Ferguson, of the Civil rights Cases by Jones v. Alfred H. Mayer Co., and the evolution of the court's federalism jurisprudence from Wirtz to National League of Cities to Garcia to Lopez.38

Ultimately, Calabresi "endors[es] a modest doctrine of stare decisis in cases where, as Andrew Jackson said, 'the acquiescence of the people and the States' seems well-settled because all three branches of the federal government have completely accepted a constitutional interpretation which departs from the original meaning." (Like Bork, he points to paper money as one example.) But his thesis is that "long-standing precedents [should] be challenged first by the political rather than the judicial branches of government" because the former "are better than the court at figuring out when there are reliance interests and when those reliance interests are trumped by the existence of a constitutional error." In the strong form of that thesis, "once the President files a brief asking the court to overrule, reliance interests [as a buttress for stare decisis] are at an end"; in a weaker form, if the political branches repeatedly -- five times in a decade vis-a-vis Roe -- show up at the court saying it should abandon a given case, "the very least the Court ought to do is decide the case on its textual merits and not on the basis of stare decisis." That's the complete opposite of what Casey says; Calabresi convincingly demonstrates that Casey was not only the outlier in the court's precedent practices, but moreover was "180 degrees wrong to say that the Court should try the hardest to stand its ground when its precedents are being challenged with the most verve."

To be continued...

Post facto:
What do I have against the Seventeenth Amendment? (6/16/08)

1. 1. Ely, Democracy and Distrust: A Theory of Judicial Review 32 (1980).
2. 2. Rubin, Taking Its Proper Place in the Constitutional Canon: Bolling v. Sharpe, Korematsu, and the Equal Protection Component of Fifth Amendment Due Process, 92 Va. L. Rev. 1879, 1883 (2006). See also Amar, Intratextualism, 112 Harv. L. Rev. 747, 767 (1999) ("there is an obvious intratextual difficulty with Warren's emphasis on due process: don't the words 'due process' in the Fifth Amendment mean the same thing as the words 'due process' in the Fourteenth Amendment, which in turn mean something different than the words 'equal protection' in the Fourteenth Amendment?"); Bork, The Tempting of America 83 (1990) ("The framers of the fourteenth amendment adopted the due process clause of the fifth amendment but obviously thought it necessary to add the equal protection clause, obviously understanding that due process, the requirement of fair procedures, did not include the requirement of equal protection in the substance of state laws"). Rubin's conclusion - shared by Bork, see ibid., and Bernstein, see infra - that "this puzzle can be easily solved if one understands Bolling as nothing more remarkable than a routine modern substantive due process decision," Rubin, supra, at 1883-4, is little defense (and may even be a problem as I'll explain later) unless one accepts substantive due process, which I do not.
3. 3. Ely, supra, at 38.
4. 4. Bernstein, Bolling, Equal Protection, Due Process, and Lochnerphobia, 93 Geo. L.J. 1253, 1258 (2005).
5. 5. But see Ely, supra, at 33.
6. 6. See comments in this thread; SF: Equal protection (2/20/07); SF: How conservatives co-opted Brown (shocking revelations) (7/2/07).
7. 7. Ring v. Arizona, 536 U.S. 584, 611 (2002) (Scalia, J., concurring).
8. 8. As to the latter, as Randy Barnett has pointed out, stare decisis serves important rule-of law values, and "[w]ere precedent to be rejected, the stability of constitutional law might be undermined as each Court considers itself completely free to reach different conclusions about the meaning of the text as time goes by." Barnett, Trumping Precedent With Original Meaning: Not As Radical as it Sounds, 22 Const. Commentary 257, 259 (2005).
9. 9. Cf. SF: Sub nomine curiae (8/23/07).
10. 10. My views on the need for neutral principles is well-rehearsed, and this essay should be read in light of that position. A full accounting of my views on legal process theory will have to wait for another day, but I should note my interest in legal process, and belief that, at very least, synergies exist between proceduralism and textualism.
11. 11. Allied-Bruce Terminix v. Dobson, 513 U.S. 265, 284 (1995) (Scalia, J., dissenting).
12. 12. Hubbard v. United States, 514 U.S. 695, 716 (1995) (Scalia, J., concurring). Cf. Richard Posner, The Federal Courts: Challenge and Reform 372 (1996) ("[if] precedents are followed only if the court concludes after an independent analysis that they are right ... [they] would have no more inherent weight than law review articles")
13. 13. I've emphasized my insistence that for reliance interests to carry significant weight, the reliance be direct; I've distinguished Roe, for example, because "the reliance interest usually held out [for that case] is on legal abortion, not Roe [itself]. Overruling Roe-Casey will not ipso facto result in any change in substantive law at all, which I regard as a threshold question for assessing reliance." That might overstate the point, in hindsight, but I think the basic distinction is sound. "[O]verruling Roe will not criminalize abortion, and will merely make it possible for such laws to exist, subject to the normal democratic process."
14. 14. Put another way, if the court reaffirms the precedent, can it be kept self-contained in similar cases? Can the principle be contained in just this area of doctrine? What happens if it can't? etc. One of the problems with regard to Roe for example, is that its animating principle "is limitless, and limitlessly corrosive; it will leak (and in fact has flooded) into every area of jurisprudence."
15. 15. Easterbrook, Stability and Reliability in Judicial Decisions, 73 Cornell L. Rev. 422, 433 (1988).
16. 16. Peller, Neutral Principles in the 1950s, 21 U. Mich. J. L. Reform 561 (1988); see also Eskridge & Frickey, The Making of the Legal Process, 107 Harv. L. Rev. 2031 (1994), text accompanying nn.36-9, and generally, Wells, Behind the Parity Debate: The Decline of the Legal Process Tradition in the Law of Federal Courts, 71 B.U. L. Rev. 609 (1991), text accompanying nn.42-79.
17. 17. Althouse, How to Build a Separate Sphere: Federal Courts & State Power, 100 Harv. L. Rev. 1485, 1497 (1987).
18. 18. See Tennessee v. Lane, 124 St. Ct. 1978, 2009 (2004) (Scalia, J., dissenting).
19. 19. Complex multifactor balancing tests should be avoided because they tend to be subjective, malleable, and unpredictable -- and thus injurious to the rule of law, which, as Scalia has lucidly explained, is necessarily a law of rules. Law "designate[s] by rules certain types of behavior as standards for the guidance either of members of society as a whole or of special classes within it," and these rules having been promulgated, those subject to it "are expected without the aid or intervention of officials to understand the rules and to see that the rules apply to them and to conform to them." H.L.A. Hart, The Concept of Law 38 (1961) The rule of law requires that "government in all its actions is bound by rules fixed and announced beforehand -- rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge." Hayek, The Road to Serfdom 80 (1994). Thus, "law ought to be knowable; secret laws are inherently tyrannical" because they demand compliance with a rule that no person can know in advance (this is also why exhortations for judges to do justice rather than uphold the law fail: "if the law is whatever the judge in a given case thinks is a just result in that case, no one can know in advance what the law is and take reasonable steps to conform their behavior to it," and then we're back to secret laws). Thus, "[t]he task of the textualist judge is to ascertain how the text would be understood by a reasonable person contemporaneously with its enactment, and when the text is gaudy, fraught, or even internally contradictory, what conclusion would that reasonable person draw from the text, in light of the apparent purpose of the statute placed alongside the balance of the corpus juris, as to how they should behave in order to comply with the statute?" Dodd, when Two Wrongs Do Make a Right: the Strange Case of Burke v. Bennett at 16 (available at SSRN) (2008) (footnote omitted).
20. 20. Presumably, Scalia would make this argument for why the court should have overruled Flast v. Cohen, 392 U.S. 83 (1968) last term in Hein v. Freedom from Religion, 127 S.Ct. 722 (2006), but I'm not so sure that Hein's limitation of Flast is irrational, still less unprecedented.
21. 21. Levinson, Confrontation, Fidelity, Transformation: the "Fundamentalist" Judicial Persona of Justice Antonin Scalia, 26 Pace L. Rev. 445, 474-5 (2006) (quoting Webster v. Reproductive Health Services, 492 U.S. 490, 537 (1989) (Scalia, J., dissenting)).
22. 22. Payne v. Tennessee, 501 U. S. 808, 834 (1991) (Scalia, J., concurring).
23. 23. Strauss, Tradition, Precedent, and Justice Scalia, 12 Cardozo L. Rev. 1699, 1706 (1991) (op cit. Levinson, supra).
24. 24. One has to assume that when Scalia says "and" rather than "or" in a published opinion, he means to close the door on a more disjunctive interpretation. Surely Our Hero is at least as finnicky about language in published opinions as gastronomic proclivities. See Kozinski, My Pizza with Nino, 12 Cardozo L. Rev. 1583 (1991).
25. 25. Genesis, Shipwrecked, on Calling All Stations (Atlantic Records 1997).
26. 26. Bork, supra, at 158, 155.
27. 27. Id. at 158
28. 28. Ibid.
29. 29. Ibid.
30. 30. See Easterbrook, Abstraction and Authority, 59 U. Chi., L. Rev 349, (1992).
31. 31. Supra n.8.
32. 32. See Scalia, A Matter of Interpretation 140 (1997).
33. 33. 36 N.M.L.R. 419 (2006).
34. 34. Cf. Anastoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc); Healy, Stare Decisis as a Constitutional Requirement, 104 W. Va. L. Rev. 43 (2001).
35. 35. Dodd, The Misguided Search For “The One Law - And The Ongoing Struggle to Articulate it Correctly” at 12 n.54 (2006) (available at SSRN) (quoting Wilson v. Arkansas, 514 U.S. 927, 930 (1995)). See also South Carolina v. United States, 199 U.S. 437, 449 (1905).
36. 36. See Hart & Wechsler, The Federal Courts and the Federal System 14 n.34 (1953); W.H. Rehnquist, The Notion of a Living Constitution, 29 Harv. J. of L. & Pub. Pol. 401, 404 (2006) (originally printed 54 Tex. L. Rev. 693 (1976)); Barnett, The Original Meaning of the Judicial Power, 12 Sup. Ct. Econ. Rev. 115 (2004).
37. 37. 57 Ala. L. Rev. 635 (2006) (draft available at SSRN).
38. 38. These are not the only examples Calabresi gives, but most of the other examples aren't helpful here. The reversal of position in the Jehovah's Witness flag salute cases (i.e Gobitas and Barnette) and to-ing and fro-ing over the death penalty in the mid-1970s (i.e. Furman and Gregg) took place within a very compressed period of time. And the Warren Court's school prayer decisions displaced longstanding tradition rather than any particular precedent; with that said, as was noted above in connection to Justice Scalia, one might treat precedent and tradition as two sides of the same coin, but I'm not yet ready to go there.