Private: Kagan Hearings: Following Precedents

By David Kairys, a law professor at Temple University, visiting professor at University of Miami, and leading civil rights lawyer. Kairys is the author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer, and his other books include his co-authored leading progressive critique of the law, The Politics of Law.

After the first two days of the Kagan confirmation hearing, I doubted I would have anything to add to my reaction to the Sotomayor hearing - It's Hard to Watch. The senators and the nominee seem once again locked in a debate over who has the most passive vision of judging, and the rules and assumptions of the debate are generally embedded in and promote conservative ideas about the substance and process of law.

But Senator Sheldon Whitehouse (D., R.I.) riveted my attention on day three with his determination to show that Kagan and he share an intense commitment to following precedents. Kagan, who is doing quite well and will be deservedly confirmed, has been articulating as strong a regard for "deference" to prior decisions as I have seen in any confirmation hearing, or in any Supreme Court opinion, law review or scholarly conference for some time.

Conservative justices, including former Chief Justice William Rehnquist, have been for a few decades ignoring precedents - and openly doubting the importance of precedents - as they have pretty much devastated liberal precedents whenever they can find five votes that have a different view.

Justice O'Connor was tellingly honest about this in her majority opinion in Adarand v. Pena, the 1995 case invalidating an affirmative action plan for federal contractors although a prior case approved a similar plan only several years before. She said, "Remaining true to an intrinsically sounder doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it."

I responded to this in a law review - "If stare decisis has any significance at all, it would seem to be that decisions with which the current justices disagree have some authoritative or binding effect" - and proposed that the definition of stare decisis be revised to comport with the new conservative understanding.

Instead of "stand by prior decisions," the usual understanding of stare decisis, it should be "stand by prior decisions but you can skip the ones you don't agree with." I asked a monsignor who's a friend to help me with the appropriate Latin for this reformulation, and he suggested a 10-word Latin phrase, with the short-form stare decisis quod omitti. Senator Al Franken (D., Minn.), who has once again stood out among the senators with his questions and understanding of the law, would be my choice to explain the significance of this reformulation.

The debate about who loves precedents the most sustains the law's dirty little secret that no one wishes to discuss at these hearings: There aren't legally required results in all or even most cases. This is so for simple, straightforward reasons refreshingly acknowledged by former Justice David Souter in his recent graduation talk at Harvard.

First, language and interpretation do not yield required meanings of texts, be they prior cases, statutes or the Constitution, or of "the facts." Intelligent, well meaning, honest people differ; law schools specialize in teaching students the many ways of differing.

Second, the law embraces principles, values, and policies that conflict with no required prioritization or method for determining which takes precedence in particular circumstances.

Third, the law embraces a range of methods and strategies of decision and argumentation - including following precedents - without requiring any particular one or set of them in particular circumstances.

The result is discretion, choice, which is necessarily based on some values or priorities not required by legal analysis or legal reasoning. This is the "judgment" Kagan has acknowledged at the hearings without any follow-up by the senators. We should be having a debate about how the current justices have been exercising that judgment, and what changes we want and expect in the future.

Constitutional Interpretation, Supreme Court