Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?

Yale Law Journal

Volumn 109, Issue 7, 2000, Pages 1535-1601

  Paulsen, Michael Stokes ^a  

^a NONE

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EID: 0042726081     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797601     Document Type: Article

References (203)

1. See, e.g., Agostini v. Felton, 521 U.S. 203, 235-36 (1997) (collecting cases and noting that stare decisis is "not an inexorable command" but "a policy judgment" that "is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions"); Seminole Tribe v. Florida, 517 U.S. 44, 63 (1996) ("[W]e always have treated stare decisis as a principle of policy . . . and not as an inexorable command. . . . When governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent. . . . Our willingness to reconsider our earlier decisions has been particularly true in constitutional cases, because in such cases correction through legislative action is practically impossible." (internal quotation marks and citations omitted)); Payne v. Tennessee, 501 U.S. 808, 827-30 & n.1 (1991) (collecting cases); Patterson v. McLean Credit Union, 491 U.S. 164, 171-75 (1989); Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962) (noting the Court's "considered practice not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases"); Smith v. Allwright, 321 U.S. 649, 665 (1944) ("In constitutional questions . . . this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions."); Helvering v. Hallock, 309 U.S. 106, 119 (1940) (noting that "stare decisis is a principle of policy and not a mathematical formula of adherence to the latest decision"); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 94 (1936) (Stone & Cardozo, JJ., concurring in the result) ("The doctrine of stare decisis . . . has only a limited application in the field of constitutional law.").
2. 505 U.S. 833 (1992).
3. 410 U.S. 113 (1973).
4. See Casey, 505 U.S. at 854-69. Despite its exaltation of stare decisis, the Court in Casey partially overruled two other constitutional decisions concerning the scope of the judicially discovered right to abortion. See id. at 882 (overruling in part Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986), and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983)).
5. See id. at 861 (" Within the bounds of normal stare decisis analysis, then, and subject to the considerations on which it customarily turns, the stronger argument is for affirming Roe's central holding, with whatever degree of personal reluctance any of us may have, not for overruling it.").
6. See Michael Stokes Paulsen, Captain James T. Kirk and the Enterprise of Constitutional Interpretation: Some Modest Proposals from the Twenty-Third Century, 59 ALB. L. REV. 671, 679-81 (1995) [hereinafter Paulsen, Enterprise] (criticizing Casey and calling stare decisis "a hoax designed to provide cover for a particular outcome, not a genuine, principled ground of decision"); Michael Stokes Paulsen, Book Review, 10 CONST. COMMENTARY 221, 225-233 (1993) [hereinafter Paulsen, Book Review] (reviewing ROBERT A. BURT, THE CONSTITUTION IN CONFLICT (1992)); cf. Michael Stokes Paulsen & Daniel N. Rosen, Brown, Casey-Style: The Shocking First Draft of the Segregation Opinion, 69 N.Y.U. L. REV. 1287 (1994).
7. See Michael Stokes Paulsen, Captain James T. Kirk and the Enterprise of Constitutional Interpretation: Some Modest Proposals from the Twenty-Third Century, 59 ALB. L. REV. 671, 679-81 (1995) [hereinafter Paulsen, Enterprise] (criticizing Casey and calling stare decisis "a hoax designed to provide cover for a particular outcome, not a genuine, principled ground of decision"); Michael Stokes Paulsen, Book Review, 10 CONST. COMMENTARY 221, 225-233 (1993) [hereinafter Paulsen, Book Review] (reviewing ROBERT A. BURT, THE CONSTITUTION IN CONFLICT (1992)); cf. Michael Stokes Paulsen & Daniel N. Rosen, Brown, Casey-Style: The Shocking First Draft of the Segregation Opinion, 69 N.Y.U. L. REV. 1287 (1994).
8. See Michael Stokes Paulsen, Captain James T. Kirk and the Enterprise of Constitutional Interpretation: Some Modest Proposals from the Twenty-Third Century, 59 ALB. L. REV. 671, 679-81 (1995) [hereinafter Paulsen, Enterprise] (criticizing Casey and calling stare decisis "a hoax designed to provide cover for a particular outcome, not a genuine, principled ground of decision"); Michael Stokes Paulsen, Book Review, 10 CONST. COMMENTARY 221, 225-233 (1993) [hereinafter Paulsen, Book Review] (reviewing ROBERT A. BURT, THE CONSTITUTION IN CONFLICT (1992)); cf. Michael Stokes Paulsen & Daniel N. Rosen, Brown, Casey-Style: The Shocking First Draft of the Segregation Opinion, 69 N.Y.U. L. REV. 1287 (1994).
9. See Michael Stokes Paulsen, Captain James T. Kirk and the Enterprise of Constitutional Interpretation: Some Modest Proposals from the Twenty-Third Century, 59 ALB. L. REV. 671, 679-81 (1995) [hereinafter Paulsen, Enterprise] (criticizing Casey and calling stare decisis "a hoax designed to provide cover for a particular outcome, not a genuine, principled ground of decision"); Michael Stokes Paulsen, Book Review, 10 CONST. COMMENTARY 221, 225-233 (1993) [hereinafter Paulsen, Book Review] (reviewing ROBERT A. BURT, THE CONSTITUTION IN CONFLICT (1992)); cf. Michael Stokes Paulsen & Daniel N. Rosen, Brown, Casey-Style: The Shocking First Draft of the Segregation Opinion, 69 N.Y.U. L. REV. 1287 (1994).
10. There are special issues associated with selective statutory abrogation of stare decisis, which I discuss below. See infra text accompanying notes 167-171. I conclude that selective abrogation is constitutionally permissible, but across-the-board abrogation (at least for all constitutional cases) is preferable.
11. "Stare decisis" may be defined, crudely but not inaccurately, as the policy of adhering to precedent "whether or not mistaken." Casey, 505 U.S. at 857. The essence of the doctrine - the feature that gives the doctrine any genuine, independent weight in judicial decisionmaking (if it in fact does have such weight) - is adherence to earlier decisions, in subsequent cases, simply and purely because they were once decided a particular way, even though the court in the subsequent case otherwise would be prepared to say, based on other interpretive criteria, that the precedent decision's interpretation of law is wrong. One does not need a doctrine of stare decisis to explain a court's decision to adhere to a prior interpretation of law that it thinks is correct, on independent criteria. See Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 571 (1987) ("The bare skeleton of an appeal to precedent is easily stated: The previous treatment of occurrence X in manner Y constitutes, solely because of its historical pedigree, a reason for treating X in manner Y if and when X again occurs."); id. at 575 (" [I]f we are truly arguing from precedent, then the fact that something was decided before gives it present value despite our current belief that the previous decision was erroneous."); cf. Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 755 (1988) (arguing that the essence of stare decisis is that "the second court must feel bound by the precedent"). I set to one side for purposes of this Article the interesting and important question of whether Congress may abrogate (or mandate) "vertical" stare decisis, in the sense of lower courts' generally accepted obligation to follow the decisions of the Supreme Court and other courts above them in the hierarchical chain of appeal. See infra note 169. In this Article, I focus on whether Congress may relieve the Supreme Court of the obligation to follow its prior cases interpreting some aspect of the Constitution, when the Supreme Court is convinced that the prior case is wrong and would not, but for the doctrine of stare decisis, follow or apply it.
12. "Stare decisis" may be defined, crudely but not inaccurately, as the policy of adhering to precedent "whether or not mistaken." Casey, 505 U.S. at 857. The essence of the doctrine - the feature that gives the doctrine any genuine, independent weight in judicial decisionmaking (if it in fact does have such weight) - is adherence to earlier decisions, in subsequent cases, simply and purely because they were once decided a particular way, even though the court in the subsequent case otherwise would be prepared to say, based on other interpretive criteria, that the precedent decision's interpretation of law is wrong. One does not need a doctrine of stare decisis to explain a court's decision to adhere to a prior interpretation of law that it thinks is correct, on independent criteria. See Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 571 (1987) ("The bare skeleton of an appeal to precedent is easily stated: The previous treatment of occurrence X in manner Y constitutes, solely because of its historical pedigree, a reason for treating X in manner Y if and when X again occurs."); id. at 575 (" [I]f we are truly arguing from precedent, then the fact that something was decided before gives it present value despite our current belief that the previous decision was erroneous."); cf. Henry P. Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 755 (1988) (arguing that the essence of stare decisis is that "the second court must feel bound by the precedent"). I set to one side for purposes of this Article the interesting and important question of whether Congress may abrogate (or mandate) "vertical" stare decisis, in the sense of lower courts' generally accepted obligation to follow the decisions of the Supreme Court and other courts above them in the hierarchical chain of appeal. See infra note 169. In this Article, I focus on whether Congress may relieve the Supreme Court of the obligation to follow its prior cases interpreting some aspect of the Constitution, when the Supreme Court is convinced that the prior case is wrong and would not, but for the doctrine of stare decisis, follow or apply it.
13. See Michael Stokes Paulsen, Hell, Handbaskets, and Government Lawyers: The Duty of Loyalty and Its Limits, LAW & CONTEMP. PROBS., Winter 1998, at 83 [hereinafter Paulsen, Duty of Loyalty]; Michael Stokes Paulsen, Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused, 7 J.L. & RELIGION 33 (1989) [hereinafter Paulsen, Accusing Justice].
14. See Michael Stokes Paulsen, Hell, Handbaskets, and Government Lawyers: The Duty of Loyalty and Its Limits, LAW & CONTEMP. PROBS., Winter 1998, at 83 [hereinafter Paulsen, Duty of Loyalty]; Michael Stokes Paulsen, Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused, 7 J.L. & RELIGION 33 (1989) [hereinafter Paulsen, Accusing Justice].
15. All good scholarship, I believe, entails some element of "advocacy." (And, conversely, all good advocacy entails some element of scholarship.) The veneer of neutrality, however, is often used by legal scholars to disguise an agenda. In my judgment, where such an agenda is covert, or where motivations are misrepresented, the veneer of academic objectivity becomes a species of borderline academic dishonesty. Far better, I think, to dispense with the veneer. Motivations should be disclosed honestly. In return, honest arguments should be evaluated on their merits.
16. 478 U.S. 186 (1986) (finding that the Constitution does not protect homosexual conduct against state criminal prohibition).
17. Other prominent examples of currently controversial constitutional decisions that might be candidates for reconsideration if Congress were to abrogate stare decisis include Alden v. Maine, 119 S. Ct. 2240 (1999); Seminole Tribe v. Florida, 517 U.S. 44 (1996); and Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). Seminole Tribe and Alden were both decided on 5-4 votes and there is at least some reason to believe that Justice Scalia's votes for the controversial majority opinions rest in part on considerations of stare decisis. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 34 (1989) (Scalia, J., concurring in part and dissenting in part) (arguing that because the case is "at least close . . . the mere venerability of an answer consistently adhered to for almost a century, and the difficulty of changing, or even clearly identifying, the intervening law that has been based on that answer, strongly argue against a change."). Scalia has sometimes decried the demise of stare decisis, see, e.g., Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 108-09 (1993) (Scalia, J., concurring) (lamenting the era of the "prospectivity principle," because it "was marked by a newfound disregard for stare decisis"), and has sometimes criticized reliance on the doctrine, see, e.g., Casey, 505 U.S. at 993 (Scalia, J., concurring in part and dissenting in part) ("The Court's reliance upon stare decisis can best be described as contrived."); Payne v. Tennessee, 501 U.S. 808, 834-35 (1991) (Scalia, J., concurring) (observing that the doctrine of stare decisis, "to the extent it rests upon anything more than administrative convenience, is merely the application to judicial precedents of a more general principle that the settled practices and expectations of a democratic society should generally not be disturbed by the courts").
18. I hope to treat the issues of the legitimacy and constitutional status of the doctrine of stare decisis more comprehensively, and in a non-subject-specific manner, in a future work, provisionally entitled The Pernicious Doctrine of Stare Decisis.
19. See generally Henry P. Monaghan, The Supreme Court 1974 Term - Foreword: Constitutional Common Law, 89 HARV. L. REV. 1 (1975) (arguing that numerous "constitutional" decisions of the Supreme Court should be understood as in reality a species of "constitutional common law" that Congress may displace by statute).
20. See infra note 38 (noting the arguments that have been advanced for the proposition that the doctrine of stare decisis is unconstitutional). One need not accept the bracing proposition that the practice of stare decisis is unconstitutional in order to accept the conclusion of this Article: that the policy of stare decisis is neither constitutionally required nor an inherent aspect of "[t]he judicial Power" of Article III, exempt from legislative alteration.
21. See infra text accompanying notes 167-171. The constitutionality of a statutory abrogation of stare decisis should not turn on the motives of Congress in enacting it, unless the motive itself is unconstitutional. A desire to see the Court overturn Roe (or any other case) is not an illegitimate motive; it is improper only if the means employed by Congress to effectuate this motive are themselves unlawful - that is, if Congress attempts to dictate the way that the Court decides the issue on the merits or to withdraw from judicial consideration factual or legal considerations that the Constitution requires federal courts to be free to consider. As I develop more fully below, the type of statute I advocate here would not dictate results, establish conclusive presumptions, or deny consideration of the merits of a constitutional issue in any respect. See infra text accompanying notes 155-160. It simply would remove from consideration a set of policy factors that the Court itself has acknowledged, repeatedly and consistently, are not required by the Constitution and that consequently lie within the policy judgment of Congress. See infra Section II.A.
22. Casey, 505 U.S. at 857.
23. Id. at 864-69; see also Paulsen, Book Review, supra note 6, at 225-33; infra Section II.B.
24. 521 U.S. 702 (1997).
25. See infra Subsection II.B.3.
26. Casey, 505 U.S. at 868.
27. It is interesting to compare the initial judicial and academic reaction, early in the twentieth century, to "severability" instructions from legislatures concerning what courts should do if a portion of a legislative enactment were found unconstitutional. As Professor Nagle notes, "State courts and commentators refused to accept the proposition that legislatures had authority to dictate to the courts the appropriate decision regarding severability." John Copeland Nagle, Severability, 72 N.C. L. REV. 203, 222 (1993) (collecting cases and commentaries).
28. Casey, 505 U.S. at 854 (citations omitted).
29. Id.
30. For discussion of whether selective abrogation of stare decisis might pose other constitutional problems, see infra text accompanying notes 167-171.
31. Casey, 505 U.S. at 854.
32. Id.
33. A "strong" rule of stare decisis would give dispositive effect to precedent. A "weak" version of such a rule would still give precedent decision-altering weight, independent of its persuasive value. Such weight would not be fully dispositive, however, but would be considered along with other factors.
34. Casey, 505 U.S. at 846.
35. Id. at 854.
36. Id. at 857.
37. See Payne v. Tennessee, 501 U.S. 808, 827 (1991) ("[T]his Court has never felt constrained to follow precedent." (quoting Smith v. Allwright, 321 U.S. 649, 665 (1944))). Casey contains about as strong an argument as the Court has ever made for stare decisis, and it still stops well short of saying the doctrine is of constitutional stature. The closest the Court in Casey comes to such a claim are its assertions later in the joint opinion that overly frequent overruling "would overtax the country's belief in the Court's good faith," and that overruling "watershed" decisions (meaning especially controversial or divisive decisions that the Court nonetheless believes "call[ ] the contending sides of a national controversy to end their national division by accepting a common mandate" in the form of the Court's resolution, Casey, 505 U.S. at 867), in perceived response to public or political pressure, or as a consequence of changes in the Court's composition, "would subvert the Court's legitimacy." Id. at 866-67. The Court in Casey believed that public perceptions of the Court's legitimacy are linked with the nation's "very ability to see itself through its constitutional ideals," and thus to "the rule of law." See id. at 868-69. When all is said and done, however, nothing in even the rhetoric of Casey is equivalent to an assertion that overruling of precedent is inconsistent with the rule of law. The most the Court was willing to say was that adhering to precedent furthers certain important rule-of-law values. The only other times that the Court has made similarly strong statements, it has still stopped well short of a claim that stare decisis is of constitutional status. See Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197, 202, 203 (1991) (stating that "[t]ime and time again, this Court has recognized that 'the doctrine of stare decisis is of fundamental importance to the rule of law,'" but recognizing that "countervailing justifications for departing from our precedents" exist (quoting Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 494 (1987))); Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989) (calling stare decisis "a basic self-governing principle within the Judicial Branch" but noting that it is a principle of policy only); cf. Plaut v. Spendthrift Farm, 514 U.S. 211, 225 (1995) (quoting Thomas Cooley's 1868 argument that the legislature may not "direct[ ] what particular steps shall be taken in the progress of a judicial inquiry"). Both Patterson and Hilton involved issues of statutory interpretation, where the Court has found considerations of stare decisis to have "special force." Hilton, 502 U.S. at 202. These cases, and others employing similar language, might be taken to suggest - but fall well short of themselves claiming - that the policy of stare decisis, in some form, is constitutionally required as part of "[t]he judicial Power" of Article III. As argued at length below, a direct assertion that stare decisis is of constitutional dimension would be inconsistent with a wealth of current and historical practice. See infra Section III.C. (That in itself is not dispositive, of course. Just as the policy of stare decisis should not control constitutional interpretation where a prior judicial understanding is found unpersuasive, so too current or historical practice cannot definitively establish that such a practice is consistent with the best reading of the Constitution. But it surely can be persuasive, as I argue below.)
38. See Casey, 505 U.S. at 882 (overruling in part Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747 (1986), and City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983)).
39. Id. at 854.
40. 521 U.S. 203 (1997).
41. Id. at 235; see also Seminole Tribe v. Florida, 517 U.S. 44, 63 (1996) (majority opinion of Rehnquist, C.J., joined by O'Connor, Scalia, Kennedy, & Thomas, JJ.) (noting that the Court has "always . . . treated stare decisis as a principle of policy . . . and not as an inexorable command," and that "[o]ur willingness to reconsider our earlier decisions has been particularly true in constitutional cases, because in such cases correction through legislative action is practically impossible" (emphasis added) (internal quotation marks omitted)); Adarand Constructors v. Peña, 515 U.S. 200, 231-35 (1995) (part III-C of the opinion, by O'Connor, J., joined by Kennedy, J.) (embracing the view that "stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable" and finding "special justification" for overruling a precedent where the precedent is (1) "inconsistent with the decisions that came before it," (2) "lack[s] constitutional roots," or (3) "was an abrupt and largely unexplained departure from precedent, and of which [t]he great weight of scholarly opinion ha[d] been critical" (internal quotation marks omitted) (last two alterations in original)); cf. City of Boerne v. Flores, 521 U.S. 507, 548 (1997) (O'Connor, J., dissenting) (making a similar argument that stare decisis does not require adherence to a "demonstrably wrong" and "recent" decision); id. at 565 (Souter, J., dissenting) ("I have serious doubts about the precedential value of the [Employment Division v. Smith, 494 U.S. 872 (1990),] rule and its entitlement to adherence."); Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 571-76 (1993) (Souter, J., concurring in part and concurring in the judgment) (noting the factors supporting reconsideration of a constitutional ruling). Significantly, Justice Souter's dissent in Boerne makes clear his view that Congress can legitimately and constitutionally enact legislation that has the effect of requiring the Supreme Court to reconsider one of its earlier constitutional decisions. Indeed, such a view governed his vote in that case, as he concluded that the question of the constitutionality of the Religious Freedom Restoration Act depended on whether or not Smith was correctly decided and that full consideration of that issue was required in order to decide the case: [T]his case should be set down for reargument permitting plenary reexamination of the issue. Since the Court declines to follow that course . . . the constitutionality of the Act of Congress to enforce the free-exercise right cannot now be soundly decided. I would therefore dismiss the writ of certiorari as improvidently granted, and I accordingly dissent from the Court's disposition of this case. Boerne, 521 U.S. at 565-66 (Souter, J., dissenting). Justice Breyer expressed a very similar view and joined the pertinent portions of Justice O'Connor's dissent addressing the relevance of stare decisis. See id. at 566 (Breyer, J., dissenting).
42. Agostini, 521 U.S. at 235 (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)).
43. Indeed, it has been suggested that to the extent judges rely on the doctrine to follow precedents rather than (and contrary to) the Constitution, the doctrine of stare decisis is unconstitutional: The Constitution is paramount law, and must take precedence (no pun intended) over precedents that depart from it, under the reasoning of Marbury v. Madison. 5 U.S. (1 Cranch) 137 (1803), which declared that courts must prefer the Constitution to the act of a subordinate agency under the Constitution, when the two conflict. See Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23, 27-28 (1994) ("If the Constitution says X and a prior judicial decision says Y, a court has not merely the power, but the obligation, to prefer the Constitution."); see also Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 CORNELL L. REV. 401, 408 (1988) (arguing that "judges are oathbound to rule in accordance with the Constitution, not with prior opinions interpreting the Constitution"); Paulsen, Enterprise, supra note 6, at 680-81 (arguing that under the reasoning of Marbury and The Federalist No. 78, "the Constitution must always be given preference over the faithless acts of mere government agents contrary to the Constitution. If this proposition is true, it follows that no court should ever deliberately adhere to what it is fully persuaded are the erroneous constitutional decisions of the past. To do so is to act in deliberate violation of the Constitution." ); cf. Paulsen, Accusing Justice, supra note 9, at 77-88 (arguing that lower-court judges are not bound to adhere to higher-court precedent that is unfaithful to the Constitution). One need not go this far in order to accept the milder proposition of this Article: that stare decisis, even if assumed to be a legitimate judicial policy, is not a policy of constitutional status, and thus, like other sub-constitutional judicial policies or practices, may be abrogated or modified by an act of Congress.
44. Indeed, it has been suggested that to the extent judges rely on the doctrine to follow precedents rather than (and contrary to) the Constitution, the doctrine of stare decisis is unconstitutional: The Constitution is paramount law, and must take precedence (no pun intended) over precedents that depart from it, under the reasoning of Marbury v. Madison. 5 U.S. (1 Cranch) 137 (1803), which declared that courts must prefer the Constitution to the act of a subordinate agency under the Constitution, when the two conflict. See Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23, 27-28 (1994) ("If the Constitution says X and a prior judicial decision says Y, a court has not merely the power, but the obligation, to prefer the Constitution."); see also Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 CORNELL L. REV. 401, 408 (1988) (arguing that "judges are oathbound to rule in accordance with the Constitution, not with prior opinions interpreting the Constitution"); Paulsen, Enterprise, supra note 6, at 680-81 (arguing that under the reasoning of Marbury and The Federalist No. 78, "the Constitution must always be given preference over the faithless acts of mere government agents contrary to the Constitution. If this proposition is true, it follows that no court should ever deliberately adhere to what it is fully persuaded are the erroneous constitutional decisions of the past. To do so is to act in deliberate violation of the Constitution." ); cf. Paulsen, Accusing Justice, supra note 9, at 77-88 (arguing that lower-court judges are not bound to adhere to higher-court precedent that is unfaithful to the Constitution). One need not go this far in order to accept the milder proposition of this Article: that stare decisis, even if assumed to be a legitimate judicial policy, is not a policy of constitutional status, and thus, like other sub-constitutional judicial policies or practices, may be abrogated or modified by an act of Congress.
45. Indeed, it has been suggested that to the extent judges rely on the doctrine to follow precedents rather than (and contrary to) the Constitution, the doctrine of stare decisis is unconstitutional: The Constitution is paramount law, and must take precedence (no pun intended) over precedents that depart from it, under the reasoning of Marbury v. Madison. 5 U.S. (1 Cranch) 137 (1803), which declared that courts must prefer the Constitution to the act of a subordinate agency under the Constitution, when the two conflict. See Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23, 27-28 (1994) ("If the Constitution says X and a prior judicial decision says Y, a court has not merely the power, but the obligation, to prefer the Constitution."); see also Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 CORNELL L. REV. 401, 408 (1988) (arguing that "judges are oathbound to rule in accordance with the Constitution, not with prior opinions interpreting the Constitution"); Paulsen, Enterprise, supra note 6, at 680-81 (arguing that under the reasoning of Marbury and The Federalist No. 78, "the Constitution must always be given preference over the faithless acts of mere government agents contrary to the Constitution. If this proposition is true, it follows that no court should ever deliberately adhere to what it is fully persuaded are the erroneous constitutional decisions of the past. To do so is to act in deliberate violation of the Constitution." ); cf. Paulsen, Accusing Justice, supra note 9, at 77-88 (arguing that lower-court judges are not bound to adhere to higher-court precedent that is unfaithful to the Constitution). One need not go this far in order to accept the milder proposition of this Article: that stare decisis, even if assumed to be a legitimate judicial policy, is not a policy of constitutional status, and thus, like other sub-constitutional judicial policies or practices, may be abrogated or modified by an act of Congress.
46. Indeed, it has been suggested that to the extent judges rely on the doctrine to follow precedents rather than (and contrary to) the Constitution, the doctrine of stare decisis is unconstitutional: The Constitution is paramount law, and must take precedence (no pun intended) over precedents that depart from it, under the reasoning of Marbury v. Madison. 5 U.S. (1 Cranch) 137 (1803), which declared that courts must prefer the Constitution to the act of a subordinate agency under the Constitution, when the two conflict. See Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB. POL'Y 23, 27-28 (1994) ("If the Constitution says X and a prior judicial decision says Y, a court has not merely the power, but the obligation, to prefer the Constitution."); see also Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 CORNELL L. REV. 401, 408 (1988) (arguing that "judges are oathbound to rule in accordance with the Constitution, not with prior opinions interpreting the Constitution"); Paulsen, Enterprise, supra note 6, at 680-81 (arguing that under the reasoning of Marbury and The Federalist No. 78, "the Constitution must always be given preference over the faithless acts of mere government agents contrary to the Constitution. If this proposition is true, it follows that no court should ever deliberately adhere to what it is fully persuaded are the erroneous constitutional decisions of the past. To do so is to act in deliberate violation of the Constitution." ); cf. Paulsen, Accusing Justice, supra note 9, at 77-88 (arguing that lower-court judges are not bound to adhere to higher-court precedent that is unfaithful to the Constitution). One need not go this far in order to accept the milder proposition of this Article: that stare decisis, even if assumed to be a legitimate judicial policy, is not a policy of constitutional status, and thus, like other sub-constitutional judicial policies or practices, may be abrogated or modified by an act of Congress.
47. Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197, 202 (1991) (citations omitted).
48. The doctrine of stare decisis, as employed and articulated by the Court, is certainly elastic enough to permit a change in the stated basis for the doctrine: One of the notable ironies of the present doctrine of stare decisis is that it appears not to require adherence to the present doctrine of stare decisis. At the same time, however, a departure from existing stare decisis doctrine, in the name of creating a stronger doctrine of stare decisis (or asserting a constitutional basis for the doctrine), does seem to border on self-contradiction and indirectly supports the argument of this Article that the doctrine is one of alterable judicial policy.
49. See infra Section III.B.
50. See Paulsen, Enterprise, supra note 6, at 681 (speculating that the Court's selective stated reliance on stare decisis may be a "Grand Hoax").
51. I have speculated elsewhere: In an atmosphere poisoned by bitter confirmation disputes centering on the issue of abortion, by protestors on both sides besieging the Court's grounds and by hysterical media attention, O'Connor, Kennedy, and Souter were concerned that no one have the impression that they had been "bought" - that they had given secret commitments on abortion as the price for a seat on the Supreme Court. Paulsen, Book Review, supra note 6, at 232-33.
52. See infra Part III.
53. See Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) ("[W]e may ask whether the rule has proven to be intolerable simply in defying practical workability.").
54. Of course, unworkability may also be a signal that something is amiss with the precedent decision on the merits - that is, that the precedent may be wrong.
55. See Paulsen, Enterprise, supra note 6, at 678-80.
56. See, e.g., Payne v. Tennessee, 501 U.S. 808, 828 (1991) ("Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved . . . ."). For an excellent historical treatment, see Thomas R. Lee, Stare Decisis in Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAND. L. REV. 647, 687-703 (1999).
57. Changes in the law can hugely upset reliance interests and disappoint investment-backed expectations. Such change can occur through legislation or through revised judicial interpretation. The two should be regarded as similar, in terms of reliance interests. Given that American courts have never represented the doctrine of stare decisis to be an absolute rule of adherence to precedent, there is scarcely more reason to assume that a judicial doctrine will remain the same than there is to assume that the legislature will not change a statute. See, e.g., United States v. Carlton, 512 U.S. 26, 33 (1994) ("Although Carlton's reliance is uncontested - and the reading of the original statute on which he relied appears to have been correct - his reliance alone is insufficient to establish a constitutional violation. . . . An entirely prospective change in the law may disturb the relied-upon expectations of individuals, but such a change would not be deemed therefore to be violative of due process."); Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993) ("In both civil and criminal cases, we can scarcely permit 'the substantive law [to] shift and spring' according to 'the particular equities of [individual parties'] claims' of actual reliance on an old rule and of harm from a retroactive application of the new rule." (citations omitted) (alterations in original)).
58. There is thus a certain logic, even within a regime that otherwise credits the policy of stare decisis, to the argument that stare decisis should be a lesser consideration when a previous decision was made on a close vote over a "spirited dissent[ ]." Payne, 501 U.S. at 829. The need to protect reliance interests should be less because reliance should be less.
59. 163 U.S. 537, 547-48 (1896).
60. Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992).
61. Cf. Paulsen & Rosen, supra note 6, at 1293-94 (parodying Casey's stare decisis analysis by rewriting it as if it were a draft opinion of the Court in Brown v. Board of Education reaffirming the "essential holding" of Plessy). It must be conceded that there exists a large commercial interest of abortion providers that would be affected by a change in the constitutional status of abortion. Such businesses, however, really stand in no different position than do factory owners on the day that a clean air act is passed. Casey does not make this argument for vested reliance on the part of the abortion industry; rather, the opinion makes only what might be called the "social reliance" argument, which is much more like the argument made for retaining Plessy in 1954. In any event, Congress could decide, in an excess of caution (whether intended seriously or ironically, as a way of highlighting the shallowness of the "reliance" policy argument in Casey), to "grandfather-in" the abrogation of stare decisis in abortion cases or delay its effective date by nine months, eliminating any argument of vested reliance on the rule's remaining the same.
62. Casey, 505 U.S. at 856.
63. The case for congressional power to weigh and reject reliance interests in areas not involving vested property rights - quintessentially, social issues and issues of legal procedure or evidence - is even easier than the general argument that Congress may decide the appropriate weight to be given to the policy of protecting reliance interests. With social issues and procedural issues, there are no even arguably vested rights flowing from an existing legal rule and thus no issues sounding in "takings," impairment of contracts, or deprivation of "property" without due process of law. For example, a criminal defendant who makes an uncompelled confession satisfying the requirements of the Fifth Amendment but not the requirements of Miranda v. Arizona, 384 U.S. 436 (1966) - I am assuming for purposes of illustration that Miranda's prophylactic warnings are not constitutionally required - surely has no legitimate "reliance" interest in Miranda remaining the rule, even if he has ordered his thinking and living around that case and, consequently, expected that his un-Mirandized confession would be inadmissible. As this Article goes to press, the Supreme Court has granted review in a case presenting an issue in certain respects analogous to the argument of this Article: If Miranda is a sub-constitutional rule of judicial policy, created as a prophylactic protection of Fifth and Sixth Amendment rights, what is the scope of Congress's power to displace the Miranda rule by statute? See United States v. Dickerson, 166 F.3d 667 (4th Cir.), cert. granted, 120 S. Ct. 578 (1999).
64. I develop below the proposition that Congress has enumerated legislative power in this area below. See infra Part III.
65. See infra Section III.A.
66. Casey, 505 U.S. at 855 (citation omitted).
67. Id. at 857.
68. 521 U.S. 702 (1997); see also Vacco v. Quill, 520 U.S. 793 (1997).
69. See Glucksberg, 521 U.S. at 720-21. For an outstanding doctrinal analysis of Glucksberg, see Michael W. McConnell, The Right To Die and the Jurisprudence of Tradition, 1997 UTAH L. REV. 665.
70. Glucksberg, 521 U.S. at 720-21 (quoting Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion); Palko v. Connecticut, 302 U.S. 319, 325 (1937)).
71. Id. at 721 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). The Court rejected respondents' attempt to describe the right as one of "self-sovereignty," instead choosing to frame the issue as "whether the protections of the Due Process Clause include a right to commit suicide with another's assistance." Id. at 724.
72. Casey, 505 U.S. at 857.
73. Id.; see also Agostini v. Felton, 521 U.S. 203, 235-36 (1997) ("[S]tare decisis does not prevent us from overruling a previous decision where there has been a significant change in or subsequent development of our constitutional law.").
74. Glucksberg, 521 U.S. at 720-21 (quoting Moore, 431 U.S. at 503).
75. See McConnell, supra note 61, at 671 (describing Glucksberg's language and holding). Professor McConnell notes that the "most specific level of formulation" methodology deployed in Glucksberg is essentially the position advanced by Justice Scalia in Michael H. v. Gerald D., 491 U.S. 110, 121-24 (1989), and that "[a]cceptance of this point is one of the most important aspects of the Glucksberg decision." McConnell, supra note 61, at 671 n.47.
76. In this respect, Glucksberg resembles Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993), relied on by the Court in Agostini, 521 U.S. at 223-28, as a critical case that had eroded the doctrinal foundations of the Court's Establishment Clause analysis in Aguilar v. Felton, 473 U.S. 402 (1985). The Court then formally overruled Aguilar in Agostini. Aguilar had struck down a program permitting publicly paid remedial math and reading teachers to provide such instruction, on-premises, at private religious schools. Zobrest, however, upheld a program permitting publicly paid sign-language interpreters to provide services to a hearing-impaired child attending a private religious school, and announced a broad principle: The neutral provision of services to public and private school students, including on-premises programs at religious private schools, does not violate the Establishment Clause. See Zobrest, 509 U.S. at 8, 13. Both the result and the principle articulated in Zobrest were logically inconsistent with the result in Aguilar. Yet the Court in Zobrest did not address the validity of Aguilar itself. Indeed, the majority opinion never so much as mentioned Aguilar. It was left for the Court in Agostini, on a motion to vacate a continuing injunction in the Aguilar litigation itself, to formally announce that the Zobrest holding had left Aguilar a relic of past doctrine. See Agostini, 521 U.S. at 236 (quoting Casey for the proposition that "development of constitutional law since the case was decided has implicitly or explicitly left [it] behind as a mere survivor of obsolete constitutional thinking" and applying this proposition to Aguilar). Interestingly, Agostini and Glucksberg were decided within three days of each other.
77. 521 U.S. at 752 (Souter, J., concurring in the judgment) (citing Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting)).
78. Id. at 721 n.17.
79. Planned Parenthood v. Casey, 505 U.S. 833, 861 (1992) (referencing "whatever degree of personal reluctance any of us may have" for reaffirming Roe's "central holding").
80. See Casey, 505 U.S. at 857. It is also instructive that, in Casey, the Court was confident that "courts building upon Roe" would not "be likely to hand down erroneous decisions as a consequence." Id. at 858. However, the Ninth Circuit's en banc decision, reversed by the Court in Glucksberg, built its elaborate construct of a substantive due process right to physician-assisted suicide on the foundation of Roe and, even more explicitly, on Casey's description of substantive due process and its reaffirmation of the Roe holding. See Glucksberg, 521 U.S. at 726 (describing and rejecting the Ninth Circuit's reliance on Casey). It is precisely the elusiveness of making substantive due process distinctions of this type that led the Court in Glucksberg to announce its narrow and specific methodology for when such claims are constitutionally cognizable. To the extent adherence to Roe is not consistent with those criteria, its persistence preserves an inconsistency in substantive due process jurisprudence that surely could permit (indeed, has permitted) courts "building on Roe" to reach results not defensible under the analysis set forth in Glucksberg.
81. This is the form in which numerous judicial arguments for overruling a case purport to find a "special justification" for departing from the later precedent. This mini-genre includes arguments by Justice O'Connor, Justice Kennedy, and Justice Souter in cases shortly following Casey. See, e.g., Adarand Constructors v. Peña, 515 U.S. 200, 231-34 (1995) (part III-C of the opinion by O'Connor, J., joined by Kennedy, J.) (overruling Metro Broadcasting v. FCC, 497 U.S. 547 (1990), on the ground that Metro Broadcasting was at odds "with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience"); Church of Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 571-75 (1993) (Souter, J., concurring in part and concurring in the judgment). The earliest example of this "overruling two-step" in the U.S. Supreme Court appears to be Gordon v. Ogden, 28 U.S. (3 Pet.) 33 (1830), which overruled Wilson v. Daniel, 3 U.S. (3 Dall.) 401 (1798), because of the Court's own intervening-and-undermining decision in Wise v. Columbian Turnpike Co., 11 U.S. (7 Cranch) 276 (1812). For discussion, see Lee, supra note 48, at 679-81.
82. It is best not to think too hard about how Precedent B, in tension with Precedent A, came about in the first place. The only answers are ones that tend to undermine the legitimacy of stare decisis as a purported constraint on judicial decisionmaking: Precedent B reached a result in tension with Precedent A because the Court, in deciding Precedent B, either concluded that Precedent A was wrong, to the extent it might be thought to require a result contrary to the one actually reached in Precedent B, or did not perceive the tension. The Court deciding Precedent B either was not prepared to repudiate Precedent A or did not think it necessary to do so (failing to perceive Precedent A's implications for Precedent B). Accordingly, Precedent A was either distinguished or ignored, the first step on its way to becoming a "remnant of abandoned doctrine."
83. The fact that a later decision has undermined a prior one merely makes it all the more proper that one or the other, or both, be reexamined to determine which one is correct. The fact that Glucksberg has seriously undermined the doctrinal basis for Roe merely makes it all the more clear that there is nothing wrong with Congress's specifying that any non-constitutional policy basis for continuing to adhere to Roe be disregarded.
84. See Casey, 505 U.S. at 864.
85. See id. at 860 (noting that viability has changed as a result of medical and technological advances from approximately 28 weeks at the time of Roe to 23 or 24 weeks at the time of Casey); see also Michael Stokes Paulsen, Medium Rare Scrutiny, 15 CONST. COMMENTARY 397, 398 n.6 (1998) (describing Casey as "creating a new standard for scrutiny of abortion regulation and overruling two prior cases, on the ground that stare decisis requires it").
86. 347 U.S. 483, 495 (1954).
87. 163 U.S. 537 (1896).
88. See Casey, 505 U.S. at 862-64.
89. See id. at 860, 864.
90. There is a connection here to the debate, begun in the early 1980s, over whether Congress may, pursuant to Section 5 of the Fourteenth Amendment, make legislative findings of fact that a human fetus is a "person" within medical understanding, and essentially require courts to determine whether the Fourteenth Amendment creates a right to abortion (or a right to life, to be given equal protection of the laws by every state) against this background, legislative determination of fact - a determination not foreclosed by Roe. See Stephen Galebach, A Human Life Statute, HUM. LIFE REV., Winter 1981, at 3. At least two prominent commentators in addition to Galebach have viewed such a proposal as requiring a reconsideration of Roe, without the constraints of stare decisis: Under the most modest understanding of congressional interpretive authority [under Section 5 of the Fourteenth Amendment], the Court is not obligated to adopt, or even to defer to, Congress's interpretation. All the Court must do is undertake a reexamination of the issue with a fresh eye, without the constraints of stare decisis. The Section Five power thus can be seen, at a minimum, as a mechanism by which Congress may express its fundamental disagreement with the Court and may force the Court to rethink its reading of the Constitution. Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153, 172 (1997); see also Stephen L. Carter, The Morgan "Power" and the Forced Reconsideration of Constitutional Decisions, 53 U. CHI. L. REV. 819, 821 (1986) (arguing that Section 5 of the Fourteenth Amendment should be "understood as a tool that permits the Congress to use its power to enact ordinary legislation to engage the Court in a dialogue about our fundamental rights, thereby 'forcing' the Justices to take a fresh look at their own judgments"). Implicit in the analysis of these scholars is the premise that no serious constitutional issue is presented by a statute compelling reconsideration of a constitutional decision on the merits without the benefit of a substantive "push" from the doctrine of stare decisis in the direction of reaffirmation of the precedential decision. As noted earlier, Justice Souter's dissent in Boerne takes much the same view: It is improper to decide the validity of a congressional enactment that takes as its starting point an interpretation of a constitutional provision that differs from the Court's, without first reexamining the Court's earlier decision; if the doctrine of stare decisis does not preclude such reexamination, consideration of the validity of the statute requires such an approach. See City of Boerne v. Flores, 521 U.S. 507, 565-66 (Souter, J., dissenting); see also supra note 36 (setting forth Justice Souter's position). The Section 5 power may provide an additional enumerated power justifying congressional abrogation of stare decisis in cases involving judicial decisions under the Fourteenth Amendment, even under the Court's narrow reading of that power in Boerne. I rely in this Article chiefly on Congress's power under the Necessary and Proper Clause as the enumerated-power basis for a statute abrogating stare decisis. See infra Section III.A. Congress has power to make legislation providing for the carrying into execution of the judicial power, so long as the substance of such legislation does not violate the Constitution in some other respect (by prescribing, for example, particular results in particular cases or classes of cases, reopening final judgments, or legislatively altering judgments). A statute abrogating stare decisis would do none of these things and, as discussed above, merely changes a judicial practice that is not required by the Constitution.
91. There is a connection here to the debate, begun in the early 1980s, over whether Congress may, pursuant to Section 5 of the Fourteenth Amendment, make legislative findings of fact that a human fetus is a "person" within medical understanding, and essentially require courts to determine whether the Fourteenth Amendment creates a right to abortion (or a right to life, to be given equal protection of the laws by every state) against this background, legislative determination of fact - a determination not foreclosed by Roe. See Stephen Galebach, A Human Life Statute, HUM. LIFE REV., Winter 1981, at 3. At least two prominent commentators in addition to Galebach have viewed such a proposal as requiring a reconsideration of Roe, without the constraints of stare decisis: Under the most modest understanding of congressional interpretive authority [under Section 5 of the Fourteenth Amendment], the Court is not obligated to adopt, or even to defer to, Congress's interpretation. All the Court must do is undertake a reexamination of the issue with a fresh eye, without the constraints of stare decisis. The Section Five power thus can be seen, at a minimum, as a mechanism by which Congress may express its fundamental disagreement with the Court and may force the Court to rethink its reading of the Constitution. Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153, 172 (1997); see also Stephen L. Carter, The Morgan "Power" and the Forced Reconsideration of Constitutional Decisions, 53 U. CHI. L. REV. 819, 821 (1986) (arguing that Section 5 of the Fourteenth Amendment should be "understood as a tool that permits the Congress to use its power to enact ordinary legislation to engage the Court in a dialogue about our fundamental rights, thereby 'forcing' the Justices to take a fresh look at their own judgments"). Implicit in the analysis of these scholars is the premise that no serious constitutional issue is presented by a statute compelling reconsideration of a constitutional decision on the merits without the benefit of a substantive "push" from the doctrine of stare decisis in the direction of reaffirmation of the precedential decision. As noted earlier, Justice Souter's dissent in Boerne takes much the same view: It is improper to decide the validity of a congressional enactment that takes as its starting point an interpretation of a constitutional provision that differs from the Court's, without first reexamining the Court's earlier decision; if the doctrine of stare decisis does not preclude such reexamination, consideration of the validity of the statute requires such an approach. See City of Boerne v. Flores, 521 U.S. 507, 565-66 (Souter, J., dissenting); see also supra note 36 (setting forth Justice Souter's position). The Section 5 power may provide an additional enumerated power justifying congressional abrogation of stare decisis in cases involving judicial decisions under the Fourteenth Amendment, even under the Court's narrow reading of that power in Boerne. I rely in this Article chiefly on Congress's power under the Necessary and Proper Clause as the enumerated-power basis for a statute abrogating stare decisis. See infra Section III.A. Congress has power to make legislation providing for the carrying into execution of the judicial power, so long as the substance of such legislation does not violate the Constitution in some other respect (by prescribing, for example, particular results in particular cases or classes of cases, reopening final judgments, or legislatively altering judgments). A statute abrogating stare decisis would do none of these things and, as discussed above, merely changes a judicial practice that is not required by the Constitution.
92. There is a connection here to the debate, begun in the early 1980s, over whether Congress may, pursuant to Section 5 of the Fourteenth Amendment, make legislative findings of fact that a human fetus is a "person" within medical understanding, and essentially require courts to determine whether the Fourteenth Amendment creates a right to abortion (or a right to life, to be given equal protection of the laws by every state) against this background, legislative determination of fact - a determination not foreclosed by Roe. See Stephen Galebach, A Human Life Statute, HUM. LIFE REV., Winter 1981, at 3. At least two prominent commentators in addition to Galebach have viewed such a proposal as requiring a reconsideration of Roe, without the constraints of stare decisis: Under the most modest understanding of congressional interpretive authority [under Section 5 of the Fourteenth Amendment], the Court is not obligated to adopt, or even to defer to, Congress's interpretation. All the Court must do is undertake a reexamination of the issue with a fresh eye, without the constraints of stare decisis. The Section Five power thus can be seen, at a minimum, as a mechanism by which Congress may express its fundamental disagreement with the Court and may force the Court to rethink its reading of the Constitution. Michael W. McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 HARV. L. REV. 153, 172 (1997); see also Stephen L. Carter, The Morgan "Power" and the Forced Reconsideration of Constitutional Decisions, 53 U. CHI. L. REV. 819, 821 (1986) (arguing that Section 5 of the Fourteenth Amendment should be "understood as a tool that permits the Congress to use its power to enact ordinary legislation to engage the Court in a dialogue about our fundamental rights, thereby 'forcing' the Justices to take a fresh look at their own judgments"). Implicit in the analysis of these scholars is the premise that no serious constitutional issue is presented by a statute compelling reconsideration of a constitutional decision on the merits without the benefit of a substantive "push" from the doctrine of stare decisis in the direction of reaffirmation of the precedential decision. As noted earlier, Justice Souter's dissent in Boerne takes much the same view: It is improper to decide the validity of a congressional enactment that takes as its starting point an interpretation of a constitutional provision that differs from the Court's, without first reexamining the Court's earlier decision; if the doctrine of stare decisis does not preclude such reexamination, consideration of the validity of the statute requires such an approach. See City of Boerne v. Flores, 521 U.S. 507, 565-66 (Souter, J., dissenting); see also supra note 36 (setting forth Justice Souter's position). The Section 5 power may provide an additional enumerated power justifying congressional abrogation of stare decisis in cases involving judicial decisions under the Fourteenth Amendment, even under the Court's narrow reading of that power in Boerne. I rely in this Article chiefly on Congress's power under the Necessary and Proper Clause as the enumerated-power basis for a statute abrogating stare decisis. See infra Section III.A. Congress has power to make legislation providing for the carrying into execution of the judicial power, so long as the substance of such legislation does not violate the Constitution in some other respect (by prescribing, for example, particular results in particular cases or classes of cases, reopening final judgments, or legislatively altering judgments). A statute abrogating stare decisis would do none of these things and, as discussed above, merely changes a judicial practice that is not required by the Constitution.
93. Casey, 505 U.S. at 868 ("To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing.").
94. Id. at 867 ("So 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.").
95. Id. at 868. The bracketed language in the quotation comes from the Court's discussion just a few lines earlier in the opinion. One of the most revealing features of this passage is the Court's apparent holding of itself apart from and above the people. With the Court's references to "[t]heir belief in themselves" being bound up in "their" reverence for a Court that decides "their" constitutional cases and speaks for "their" constitutional ideals, it is almost as if the Court thought it was interpreting a document beginning with the words "They, the
96. Payne v. Tennessee, 501 U.S. 808, 827 (1991).
97. See Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989) ("The Court has said often and with great emphasis that 'the doctrine of stare decisis is of fundamental importance to the rule of law.'" (quoting Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 494 (1987))).
98. 501 U.S. 808.
99. As Chief Justice Marshall declared in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), [T]he judge's oath certainly applies in an especial manner, to [the judge's] conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. Id. at 180.
100. Does the notion of "separation of powers" give the judiciary an inherent constitutional power, exclusive of action by Congress, to determine what measures are necessary to protect its integrity? The argument could be fairly made that the judiciary has an implied power of self-defense and self-regulation. But the argument cannot be pressed too far. It surely cannot be the case, for example, that such a power goes so far as to permit the courts to adopt rules of decision at variance with the Constitution, treaties, or laws of the United States, simply to further stated goals of promoting judicial autonomy, power, prestige, or even perceptions of judicial integrity (to the extent those are thought to flow from a policy of adhering, generally, to precedent). If the Constitution in fact supplies a rule of law that governs a case, the courts are obliged to put that rule above any nonconstitutional policy judgment of any branch. See id. at 177. That would include any statute, rule, or policy designed to advance goals of judicial autonomy, power, prestige, or integrity, to the extent that such statute, rule, or policy conflicted with faithful application of the Constitution. Moreover, if courts possess an inherent power to adopt internal policies designed to promote the reality and the perception of judicial integrity, it is doubtful in the extreme whether such a nontextual power is exclusive of Congress's power under the Necessary and Proper Clause. As the Supreme Court has explained. The constitution concludes its enumeration of granted powers, with a clause authorizing Congress to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof. The judicial department is invested with jurisdiction in certain specified cases, in all of which it has power to render judgment. That a power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce, is expressly conferred by this clause, seems to be one of those plain propositions which reasoning cannot render plainer. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 22 (1825) (mem.). Indeed, Congress has passed a number of laws for the purposes of promoting "judicial integrity," and the courts have rejected constitutional challenges to them predicated on separation-of-powers objections (among others). See, e.g., Hastings v. Judicial Conference of the United States, 829 F.2d 91 (D.C. Cir. 1987) (upholding against constitutional challenge the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980); In re Certain Complaints Under Investigation by an Investigating Committee of the Judicial Council of the Eleventh Circuit, 783 F.2d 1488 (11th Cir. 1986) (rejecting a challenge to a judicial-misconduct investigation by the Eleventh Circuit pursuant to the same act).
101. I address below the question whether Congress could choose the opposite rule - that is, mandate stare decisis in constitutional cases - and conclude that it could not. See infra notes 161-165 and accompanying text.
102. U.S. CONST, art I, § 8, cl. 18.
103. The Supreme Court has long conceded that the Necessary and Proper Clause power of Congress reaches such matters. See Wayman, 23 U.S. (10 Wheat.) at 21-22 ("That a power to make laws for carrying into execution all the judgments which the judicial department has power to pronounce, is expressly conferred by [the Necessary and Proper Clause], seems to be one of those plain propositions which reasoning cannot render plainer. The terms of the clause neither require nor admit of elucidation."); see also infra Section III.C (providing and discussing examples of such congressional rulemaking).
104. I owe this insight to the scholarship of Gary Lawson and Patricia Granger. See Gary Lawson & Patricia B. Granger, The "Proper" Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J. 267 (1993).
105. See generally Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power To Say What the Law Is, 83 GEO. L.J. 217 (1994) (defending the propriety of autonomous coordinate interpretive power of the three departments of the national government).
106. See Lawson & Granger, supra note 94, at 271.
107. See, e.g., Adarand Constructors v. Peña, 515 U.S. 200 (1995) (applying strict scrutiny to race-based government affirmative-action programs).
108. The Supreme Court has made a similar distinction in its cases analyzing the spending power. In addition to criteria setting forth intrinsic limitations on Congress's spending power to attach substantive conditions to receipt of federal grants (to be a valid exercise of the spending power, the requirement must be in pursuit of the general welfare, must be clearly stated, and must not be unrelated to the federal interest in particular national projects or programs), there is the extrinsic limitation that the substantive condition on the grant not violate some other constitutional provision that independently bars the substance of the condition. See South Dakota v. Dole, 483 U.S. 203 (1987). Noninterference with an exclusive province or privilege of another branch is an intrinsic limitation on the scope of Congress's Necessary and Proper Clause power to enact executory laws; not violating some other constitutional provision that independently bars the substance of the enactment is an extrinsic limitation on the scope of the power.
109. Abrogation of stare decisis would not violate the Due Process Clause just because it might upset some reliance interests. There is no vested legal right of individuals in a particular precedent remaining the governing judicial interpretation, any more than there is a vested legal right of individuals in a particular statutory regime. See United States v. Carlton, 512 U.S. 26, 33-34 (1994) ("An entirely prospective change in the law may disturb the relied-upon expectations of individuals, but such a change would not be deemed therefore to be violative of due process."); Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993) (holding that reliance interests do not justify selective refusal to apply new judicial interpretations of the law to events that preceded the new interpretation); see also supra note 49.
110. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
111. In retirement, Madison explained this viewpoint as a matter of legislative and political "stare decisis," in order to justify his decision as President in 1817 to accept a congressional power to charter a national bank that he had rejected as unconstitutional as a Congressman in 1791. Letter from James Madison to Charles Jared Ingersoll (June 25, 1831), in THE MIND OF THE FOUNDER: SOURCES OF THE POLITICAL THOUGHT OF JAMES MADISON 390, 390-93 (Marvin Meyers ed., rev. ed. 1981). Madison develops the analogy of judges acquiescing in "solemnly repeated and regularly observed" judicial precedents with which they disagree as an argument for a similar rule in legislative deliberations. Id. at 392. Interestingly, however, Madison does not argue that the issue was settled by McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), which offered the judicial rule on the question of the bank's constitutionality. The occasion for writing this letter, Madison notes, was Andrew Jackson's veto on constitutional grounds of the bill to recharter the Second Bank of the United States, but Madison used the opportunity to explain his own decision as President not to veto the bank bill presented to him in 1817, two years before McCulloch was decided. See Letter from James Madison to Charles Jared Ingersoll, supra, at 390. It is, of course, also possible that Madison was simply trying his best to reconcile an inconsistency in his own political or constitutional beliefs and conduct, rather than admit to constitutional error on one or the other occasion.
112. See THE FEDERALIST No. 78, at 398-99 (Alexander Hamilton) (Gary Wills ed., 1982).
113. Id.
114. Id.
115. Lee, supra note 48, at 663.
116. Id. at 663-64.
117. See supra text accompanying notes 26-29 (discussing the difference between these two conceptions of the rote of precedent).
118. Elsewhere, I have written that this difference explains the correctness of Brown v. Board of Education, 347 U.S. 483 (1954), notwithstanding historical evidence of the expectation of some advocates of the Fourteenth Amendment that it would not have the effect of invalidating de jure segregation. See Paulsen, supra note 95, at 227 n.23; see also Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1199, 1272-82 (1987) (making a similar argument).
119. See THE FEDERALIST No. 33, supra note 102, at 155-59 (Alexander Hamilton).
120. As Hamilton said: The legislature of the United States would certainly have full power to provide that in appeals to the Supreme Court there should be no re-examination of facts where they had been tried in the original causes by juries. This would certainly be an authorised exception; but if for the reason already intimated it should be thought too extensive, it might be qualified with a limitation to such causes only as are determinable at common law in that mode of trial. THE FEDERALIST NO. 81, supra note 102, at 416 (Alexander Hamilton).
121. Ironically, the assertion that the judicial power entails judicial supremacy, as opposed to simply a coordinate power of judicial review, was first made by Brutus as an argument against the Constitution, and was never made by the Constitution's backers. See BRUTUS No. XI (Jan. 31, 1788), reprinted in 2 THE COMPLETE ANTI-FEDERALIST 417, 417-22 (Herbert J. Storing ed., 1981) (asserting that the Constitution creates a regime of unchecked judicial supremacy over the other branches of federal government); BRUTUS NO. XV (Mar. 20, 1788), supra, at 438, 438-41 (same). Hamilton vigorously denied the charge in The Federalist No. 78. See GARRY WILLS, EXPLAINING AMERICA: THE FEDERALIST 126-36 (1981); Paulsen, supra note 95, at 245-52.
122. Ironically, the assertion that the judicial power entails judicial supremacy, as opposed to simply a coordinate power of judicial review, was first made by Brutus as an argument against the Constitution, and was never made by the Constitution's backers. See BRUTUS No. XI (Jan. 31, 1788), reprinted in 2 THE COMPLETE ANTI-FEDERALIST 417, 417-22 (Herbert J. Storing ed., 1981) (asserting that the Constitution creates a regime of unchecked judicial supremacy over the other branches of federal government); BRUTUS NO. XV (Mar. 20, 1788), supra, at 438, 438-41 (same). Hamilton vigorously denied the charge in The Federalist No. 78. See GARRY WILLS, EXPLAINING AMERICA: THE FEDERALIST 126-36 (1981); Paulsen, supra note 95, at 245-52.
123. Ironically, the assertion that the judicial power entails judicial supremacy, as opposed to simply a coordinate power of judicial review, was first made by Brutus as an argument against the Constitution, and was never made by the Constitution's backers. See BRUTUS No. XI (Jan. 31, 1788), reprinted in 2 THE COMPLETE ANTI-FEDERALIST 417, 417-22 (Herbert J. Storing ed., 1981) (asserting that the Constitution creates a regime of unchecked judicial supremacy over the other branches of federal government); BRUTUS NO. XV (Mar. 20, 1788), supra, at 438, 438-41 (same). Hamilton vigorously denied the charge in The Federalist No. 78. See GARRY WILLS, EXPLAINING AMERICA: THE FEDERALIST 126-36 (1981); Paulsen, supra note 95, at 245-52.
124. Ironically, the assertion that the judicial power entails judicial supremacy, as opposed to simply a coordinate power of judicial review, was first made by Brutus as an argument against the Constitution, and was never made by the Constitution's backers. See BRUTUS No. XI (Jan. 31, 1788), reprinted in 2 THE COMPLETE ANTI-FEDERALIST 417, 417-22 (Herbert J. Storing ed., 1981) (asserting that the Constitution creates a regime of unchecked judicial supremacy over the other branches of federal government); BRUTUS NO. XV (Mar. 20, 1788), supra, at 438, 438-41 (same). Hamilton vigorously denied the charge in The Federalist No. 78. See GARRY WILLS, EXPLAINING AMERICA: THE FEDERALIST 126-36 (1981); Paulsen, supra note 95, at 245-52.
125. Ironically, the assertion that the judicial power entails judicial supremacy, as opposed to simply a coordinate power of judicial review, was first made by Brutus as an argument against the Constitution, and was never made by the Constitution's backers. See BRUTUS No. XI (Jan. 31, 1788), reprinted in 2 THE COMPLETE ANTI-FEDERALIST 417, 417-22 (Herbert J. Storing ed., 1981) (asserting that the Constitution creates a regime of unchecked judicial supremacy over the other branches of federal government); BRUTUS NO. XV (Mar. 20, 1788), supra, at 438, 438-41 (same). Hamilton vigorously denied the charge in The Federalist No. 78. See GARRY WILLS, EXPLAINING AMERICA: THE FEDERALIST 126-36 (1981); Paulsen, supra note 95, at 245-52.
126. BRUTUS NO. XI, supra note 111, at 417, 420; BRUTUS No. XII, supra note 111, at 422, 423-25.
127. BRUTUS NO. XI, supra note 111, at 417, 420; BRUTUS No. XII, supra note 111, at 422, 423-25.
128. See BRUTUS No. XI, supra note 111, at 417, 420-22; BRUTUS NO. XII, supra note 111, at 422, 423-24; BRUTUS NO. XV, supra note 111, at 437, 441. Brutus envisioned that courts would build upon precedents in expanding their powers. See BRUTUS No. XV, supra note 111, at 437, 441 ("[O]ne adjudication [on the meaning of the Constitution] will form a precedent to the next, and this to a following one."). But Brutus's discussion makes it clear that he considered the use of "precedent" in this sense to be one of enabling further departures from a strict reading of the central government's powers, not one of constraining or limiting judicial power (as opposed to determining the bounds of Congress's legislative power, see BRUTUS NO. XII, supra note 111, at 422, 423). The closest Brutus comes to asserting a power of precedent to bind future judicial interpretations is his claim that "[t]he opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal." BRUTUS NO. XI, supra note 111, at 417, 420. In context, Brutus is claiming that Supreme Court opinions (evidently meaning decisions, not "opinions" literally) will bind other branches, and all other courts. Just a sentence earlier, however, he argued that the Supreme Court would not be bound by "any fixed or established rules," but rather "will determine, according to what appears to them, the reason and spirit of the constitution." Id. Hamilton's remark, in The Federalist No. 78, that "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them" - and thus that life tenure is necessary to attract the caliber of persons who have endured the "long and laborious study" necessary to perform the task of judging competently - appears to be designed as a direct rebuttal to Brutus, cleverly presented as a passing observation on an uncontroversial point. See THE FEDERALIST No. 78, supra note 102, at 399 (Alexander Hamilton). But if the indirect assertion is being made by anyone that the Supreme Court's own prior precedents will literally bind the Court in its later decisions, it is Hamilton's assertion, not Brutus's (and, as noted above, that does not appear in fact to be Hamilton's assertion). Nor does it appear that any other prominent Anti-Federalist writer ever made the claim that the judicial power included an autonomous power to determine the binding effect of precedent. Cf. Lee, supra note 48, at 663 n.79 (noting that Anti-Federalist commentary focused on the Supreme Court's general powers in equity to circumvent any binding force of law).
129. See BRUTUS No. XI, supra note 111, at 417, 420-22; BRUTUS NO. XII, supra note 111, at 422, 423-24; BRUTUS NO. XV, supra note 111, at 437, 441. Brutus envisioned that courts would build upon precedents in expanding their powers. See BRUTUS No. XV, supra note 111, at 437, 441 ("[O]ne adjudication [on the meaning of the Constitution] will form a precedent to the next, and this to a following one."). But Brutus's discussion makes it clear that he considered the use of "precedent" in this sense to be one of enabling further departures from a strict reading of the central government's powers, not one of constraining or limiting judicial power (as opposed to determining the bounds of Congress's legislative power, see BRUTUS NO. XII, supra note 111, at 422, 423). The closest Brutus comes to asserting a power of precedent to bind future judicial interpretations is his claim that "[t]he opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal." BRUTUS NO. XI, supra note 111, at 417, 420. In context, Brutus is claiming that Supreme Court opinions (evidently meaning decisions, not "opinions" literally) will bind other branches, and all other courts. Just a sentence earlier, however, he argued that the Supreme Court would not be bound by "any fixed or established rules," but rather "will determine, according to what appears to them, the reason and spirit of the constitution." Id. Hamilton's remark, in The Federalist No. 78, that "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them" - and thus that life tenure is necessary to attract the caliber of persons who have endured the "long and laborious study" necessary to perform the task of judging competently - appears to be designed as a direct rebuttal to Brutus, cleverly presented as a passing observation on an uncontroversial point. See THE FEDERALIST No. 78, supra note 102, at 399 (Alexander Hamilton). But if the indirect assertion is being made by anyone that the Supreme Court's own prior precedents will literally bind the Court in its later decisions, it is Hamilton's assertion, not Brutus's (and, as noted above, that does not appear in fact to be Hamilton's assertion). Nor does it appear that any other prominent Anti-Federalist writer ever made the claim that the judicial power included an autonomous power to determine the binding effect of precedent. Cf. Lee, supra note 48, at 663 n.79 (noting that Anti-Federalist commentary focused on the Supreme Court's general powers in equity to circumvent any binding force of law).
130. See BRUTUS No. XI, supra note 111, at 417, 420-22; BRUTUS NO. XII, supra note 111, at 422, 423-24; BRUTUS NO. XV, supra note 111, at 437, 441. Brutus envisioned that courts would build upon precedents in expanding their powers. See BRUTUS No. XV, supra note 111, at 437, 441 ("[O]ne adjudication [on the meaning of the Constitution] will form a precedent to the next, and this to a following one."). But Brutus's discussion makes it clear that he considered the use of "precedent" in this sense to be one of enabling further departures from a strict reading of the central government's powers, not one of constraining or limiting judicial power (as opposed to determining the bounds of Congress's legislative power, see BRUTUS NO. XII, supra note 111, at 422, 423). The closest Brutus comes to asserting a power of precedent to bind future judicial interpretations is his claim that "[t]he opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal." BRUTUS NO. XI, supra note 111, at 417, 420. In context, Brutus is claiming that Supreme Court opinions (evidently meaning decisions, not "opinions" literally) will bind other branches, and all other courts. Just a sentence earlier, however, he argued that the Supreme Court would not be bound by "any fixed or established rules," but rather "will determine, according to what appears to them, the reason and spirit of the constitution." Id. Hamilton's remark, in The Federalist No. 78, that "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them" - and thus that life tenure is necessary to attract the caliber of persons who have endured the "long and laborious study" necessary to perform the task of judging competently - appears to be designed as a direct rebuttal to Brutus, cleverly presented as a passing observation on an uncontroversial point. See THE FEDERALIST No. 78, supra note 102, at 399 (Alexander Hamilton). But if the indirect assertion is being made by anyone that the Supreme Court's own prior precedents will literally bind the Court in its later decisions, it is Hamilton's assertion, not Brutus's (and, as noted above, that does not appear in fact to be Hamilton's assertion). Nor does it appear that any other prominent Anti-Federalist writer ever made the claim that the judicial power included an autonomous power to determine the binding effect of precedent. Cf. Lee, supra note 48, at 663 n.79 (noting that Anti-Federalist commentary focused on the Supreme Court's general powers in equity to circumvent any binding force of law).
131. See BRUTUS No. XI, supra note 111, at 417, 420-22; BRUTUS NO. XII, supra note 111, at 422, 423-24; BRUTUS NO. XV, supra note 111, at 437, 441. Brutus envisioned that courts would build upon precedents in expanding their powers. See BRUTUS No. XV, supra note 111, at 437, 441 ("[O]ne adjudication [on the meaning of the Constitution] will form a precedent to the next, and this to a following one."). But Brutus's discussion makes it clear that he considered the use of "precedent" in this sense to be one of enabling further departures from a strict reading of the central government's powers, not one of constraining or limiting judicial power (as opposed to determining the bounds of Congress's legislative power, see BRUTUS NO. XII, supra note 111, at 422, 423). The closest Brutus comes to asserting a power of precedent to bind future judicial interpretations is his claim that "[t]he opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal." BRUTUS NO. XI, supra note 111, at 417, 420. In context, Brutus is claiming that Supreme Court opinions (evidently meaning decisions, not "opinions" literally) will bind other branches, and all other courts. Just a sentence earlier, however, he argued that the Supreme Court would not be bound by "any fixed or established rules," but rather "will determine, according to what appears to them, the reason and spirit of the constitution." Id. Hamilton's remark, in The Federalist No. 78, that "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them" - and thus that life tenure is necessary to attract the caliber of persons who have endured the "long and laborious study" necessary to perform the task of judging competently - appears to be designed as a direct rebuttal to Brutus, cleverly presented as a passing observation on an uncontroversial point. See THE FEDERALIST No. 78, supra note 102, at 399 (Alexander Hamilton). But if the indirect assertion is being made by anyone that the Supreme Court's own prior precedents will literally bind the Court in its later decisions, it is Hamilton's assertion, not Brutus's (and, as noted above, that does not appear in fact to be Hamilton's assertion). Nor does it appear that any other prominent Anti-Federalist writer ever made the claim that the judicial power included an autonomous power to determine the binding effect of precedent. Cf. Lee, supra note 48, at 663 n.79 (noting that Anti-Federalist commentary focused on the Supreme Court's general powers in equity to circumvent any binding force of law).
132. See BRUTUS No. XI, supra note 111, at 417, 420-22; BRUTUS NO. XII, supra note 111, at 422, 423-24; BRUTUS NO. XV, supra note 111, at 437, 441. Brutus envisioned that courts would build upon precedents in expanding their powers. See BRUTUS No. XV, supra note 111, at 437, 441 ("[O]ne adjudication [on the meaning of the Constitution] will form a precedent to the next, and this to a following one."). But Brutus's discussion makes it clear that he considered the use of "precedent" in this sense to be one of enabling further departures from a strict reading of the central government's powers, not one of constraining or limiting judicial power (as opposed to determining the bounds of Congress's legislative power, see BRUTUS NO. XII, supra note 111, at 422, 423). The closest Brutus comes to asserting a power of precedent to bind future judicial interpretations is his claim that "[t]he opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal." BRUTUS NO. XI, supra note 111, at 417, 420. In context, Brutus is claiming that Supreme Court opinions (evidently meaning decisions, not "opinions" literally) will bind other branches, and all other courts. Just a sentence earlier, however, he argued that the Supreme Court would not be bound by "any fixed or established rules," but rather "will determine, according to what appears to them, the reason and spirit of the constitution." Id. Hamilton's remark, in The Federalist No. 78, that "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them" - and thus that life tenure is necessary to attract the caliber of persons who have endured the "long and laborious study" necessary to perform the task of judging competently - appears to be designed as a direct rebuttal to Brutus, cleverly presented as a passing observation on an uncontroversial point. See THE FEDERALIST No. 78, supra note 102, at 399 (Alexander Hamilton). But if the indirect assertion is being made by anyone that the Supreme Court's own prior precedents will literally bind the Court in its later decisions, it is Hamilton's assertion, not Brutus's (and, as noted above, that does not appear in fact to be Hamilton's assertion). Nor does it appear that any other prominent Anti-Federalist writer ever made the claim that the judicial power included an autonomous power to determine the binding effect of precedent. Cf. Lee, supra note 48, at 663 n.79 (noting that Anti-Federalist commentary focused on the Supreme Court's general powers in equity to circumvent any binding force of law).
133. See BRUTUS No. XI, supra note 111, at 417, 420-22; BRUTUS NO. XII, supra note 111, at 422, 423-24; BRUTUS NO. XV, supra note 111, at 437, 441. Brutus envisioned that courts would build upon precedents in expanding their powers. See BRUTUS No. XV, supra note 111, at 437, 441 ("[O]ne adjudication [on the meaning of the Constitution] will form a precedent to the next, and this to a following one."). But Brutus's discussion makes it clear that he considered the use of "precedent" in this sense to be one of enabling further departures from a strict reading of the central government's powers, not one of constraining or limiting judicial power (as opposed to determining the bounds of Congress's legislative power, see BRUTUS NO. XII, supra note 111, at 422, 423). The closest Brutus comes to asserting a power of precedent to bind future judicial interpretations is his claim that "[t]he opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal." BRUTUS NO. XI, supra note 111, at 417, 420. In context, Brutus is claiming that Supreme Court opinions (evidently meaning decisions, not "opinions" literally) will bind other branches, and all other courts. Just a sentence earlier, however, he argued that the Supreme Court would not be bound by "any fixed or established rules," but rather "will determine, according to what appears to them, the reason and spirit of the constitution." Id. Hamilton's remark, in The Federalist No. 78, that "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them" - and thus that life tenure is necessary to attract the caliber of persons who have endured the "long and laborious study" necessary to perform the task of judging competently - appears to be designed as a direct rebuttal to Brutus, cleverly presented as a passing observation on an uncontroversial point. See THE FEDERALIST No. 78, supra note 102, at 399 (Alexander Hamilton). But if the indirect assertion is being made by anyone that the Supreme Court's own prior precedents will literally bind the Court in its later decisions, it is Hamilton's assertion, not Brutus's (and, as noted above, that does not appear in fact to be Hamilton's assertion). Nor does it appear that any other prominent Anti-Federalist writer ever made the claim that the judicial power included an autonomous power to determine the binding effect of precedent. Cf. Lee, supra note 48, at 663 n.79 (noting that Anti-Federalist commentary focused on the Supreme Court's general powers in equity to circumvent any binding force of law).
134. See BRUTUS No. XI, supra note 111, at 417, 420-22; BRUTUS NO. XII, supra note 111, at 422, 423-24; BRUTUS NO. XV, supra note 111, at 437, 441. Brutus envisioned that courts would build upon precedents in expanding their powers. See BRUTUS No. XV, supra note 111, at 437, 441 ("[O]ne adjudication [on the meaning of the Constitution] will form a precedent to the next, and this to a following one."). But Brutus's discussion makes it clear that he considered the use of "precedent" in this sense to be one of enabling further departures from a strict reading of the central government's powers, not one of constraining or limiting judicial power (as opposed to determining the bounds of Congress's legislative power, see BRUTUS NO. XII, supra note 111, at 422, 423). The closest Brutus comes to asserting a power of precedent to bind future judicial interpretations is his claim that "[t]he opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal." BRUTUS NO. XI, supra note 111, at 417, 420. In context, Brutus is claiming that Supreme Court opinions (evidently meaning decisions, not "opinions" literally) will bind other branches, and all other courts. Just a sentence earlier, however, he argued that the Supreme Court would not be bound by "any fixed or established rules," but rather "will determine, according to what appears to them, the reason and spirit of the constitution." Id. Hamilton's remark, in The Federalist No. 78, that "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them" - and thus that life tenure is necessary to attract the caliber of persons who have endured the "long and laborious study" necessary to perform the task of judging competently -appears to be designed as a direct rebuttal to Brutus, cleverly presented as a passing observation on an uncontroversial point. See THE FEDERALIST No. 78, supra note 102, at 399 (Alexander Hamilton). But if the indirect assertion is being made by anyone that the Supreme Court's own prior precedents will literally bind the Court in its later decisions, it is Hamilton's assertion, not Brutus's (and, as noted above, that does not appear in fact to be Hamilton's assertion). Nor does it appear that any other prominent Anti-Federalist writer ever made the claim that the judicial power included an autonomous power to determine the binding effect of precedent. Cf. Lee, supra note 48, at 663 n.79 (noting that Anti-Federalist commentary focused on the Supreme Court's general powers in equity to circumvent any binding force of law).
135. See BRUTUS No. XI, supra note 111, at 417, 420-22; BRUTUS NO. XII, supra note 111, at 422, 423-24; BRUTUS NO. XV, supra note 111, at 437, 441. Brutus envisioned that courts would build upon precedents in expanding their powers. See BRUTUS No. XV, supra note 111, at 437, 441 ("[O]ne adjudication [on the meaning of the Constitution] will form a precedent to the next, and this to a following one."). But Brutus's discussion makes it clear that he considered the use of "precedent" in this sense to be one of enabling further departures from a strict reading of the central government's powers, not one of constraining or limiting judicial power (as opposed to determining the bounds of Congress's legislative power, see BRUTUS NO. XII, supra note 111, at 422, 423). The closest Brutus comes to asserting a power of precedent to bind future judicial interpretations is his claim that "[t]he opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal." BRUTUS NO. XI, supra note 111, at 417, 420. In context, Brutus is claiming that Supreme Court opinions (evidently meaning decisions, not "opinions" literally) will bind other branches, and all other courts. Just a sentence earlier, however, he argued that the Supreme Court would not be bound by "any fixed or established rules," but rather "will determine, according to what appears to them, the reason and spirit of the constitution." Id. Hamilton's remark, in The Federalist No. 78, that "[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them" - and thus that life tenure is necessary to attract the caliber of persons who have endured the "long and laborious study" necessary to perform the task of judging competently - appears to be designed as a direct rebuttal to Brutus, cleverly presented as a passing observation on an uncontroversial point. See THE FEDERALIST No. 78, supra note 102, at 399 (Alexander Hamilton). But if the indirect assertion is being made by anyone that the Supreme Court's own prior precedents will literally bind the Court in its later decisions, it is Hamilton's assertion, not Brutus's (and, as noted above, that does not appear in fact to be Hamilton's assertion). Nor does it appear that any other prominent Anti-Federalist writer ever made the claim that the judicial power included an autonomous power to determine the binding effect of precedent. Cf. Lee, supra note 48, at 663 n.79 (noting that Anti-Federalist commentary focused on the Supreme Court's general powers in equity to circumvent any binding force of law).
136. See Lee, supra note 48, at 665-66. Professor Lee's thorough and compelling historical analysis shows the extremely weak historical basis for any claim that the founding generation understood "[t]he judicial Power" to entail a plenary constitutional power of courts to prescribe binding precedential effect for their decisions.
137. The idea that "[t]he judicial Power" establishes precedents as binding law, obligatory in future cases, appears to have been an early-nineteenth-century innovation, perhaps presaged by certain Marshall Court opinions. See id. at 666-81. In 1833, Justice Story boldly, and without supporting evidence, asserted it to have been the original understanding of the Framers. See 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 378 (Fred B. Rothman & Co. 1991) (1833) ("[T]his conclusive effect of judicial adjudications, was in the full view of the framers of the constitution."). But even Story's position does not appear to be that "[t]he judicial Power" implies an autonomous prerogative on the part of courts to create a doctrine of precedent and thereby vest their decisions with controlling or decision-altering weight in subsequent cases. Rather, Story's argument appears to have been that the decisions of the highest courts of a jurisdiction in fact establish the law and bind future courts' interpretations, and that interpretation of the Constitution is governed by the same rule; that is, that the Constitution itself incorporates a rule of stare decisis. This extreme view - that the Constitution requires adherence to judicial precedent - has never been the accepted view in American constitutional law. On Story's overreaching view of the judicial power generally, see Paulsen, supra note 95, at 311-20.
138. See, e.g., Cooper v. Aaron, 358 U.S. 1, 18-19 (1958) (equating Supreme Court decisions interpreting the Constitution with the Constitution itself, as the supreme law of the land); see also, e.g., United States v. Nixon, 418 U.S. 683, 704-05 (1974) (similar). See generally Michael Stokes Paulsen, Nixon Now: The Courts and the Presidency After Twenty-Five Years, 83 MINN. L. REV. 1337, 1339 n.10, 1346-48 (1999) (noting the evolution of judicial assertions of judicial supremacy since 1950, culminating in Nixon).
139. Although I have not seen this argument made directly in any judicial opinion or academic literature, I cannot confidently assert that it has never been made in some form similar to that offered in the text. My formulation of the best possible structural argument for a judicial power to prescribe binding force to precedent flows from conversations with, or written comments of, Bill Kelley, Gary Lawson, Henry Monaghan, Chip Lupu, and Tom Lee.
140. See THE FEDERALIST No. 78, supra note 102, at 394 (Alexander Hamilton) ("[T]he judiciary is beyond comparison the weakest of three departments of power . . . and . . . all possible care is requisite to enable it to defend itself against [the legislative and executive departments'] attacks.").
141. An analogy to the executive power also helps the structural argument, at least rhetorically: Could Congress prescribe, pursuant to the Necessary and Proper Clause, the methodology the President must use in deciding whether to prosecute individuals for federal crimes? Could Congress prescribe, for example, that the executive branch prosecute an equal proportion of crack cocaine and powder cocaine possession or distribution offenses? If the executive power over law-execution entails a power to decide how to engage in such law-execution, does not the judicial power of law-interpretation similarly entail a power to decide how to engage in law-interpretation? The analogy is a powerful one, suggesting that congressional power must exist in both cases or neither. The validity of the analogy, however, may turn on the distinct nature of the law-executing executive power and the case-deciding judicial power and what is entailed within each. The law-executing power may simply be different in kind. If the power to execute the laws itself entails an executive prerogative of enforcement discretion - some degree of autonomous control over how, against whom, when, and (more problematically) perhaps even whether, a law will be enforced, see Nixon, 418 U.S. at 693 ("[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case . . . ."); United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (en banc) - then the hypothetical analogous statute would be unconstitutional because of the distinctive content of "[t]he executive Power" of Article II, and would provide no analogy for questions of Congress's Necessary and Proper Clause powers with respect to "[t]he judicial Power" of Article III. Similarly, a statute prescribing standards for granting pardons or vetoing bills might violate the President's constitutional powers, if such powers are purely discretionary in nature. Mercy can be arbitrary in a way that law-interpretation cannot. The nature of many executive powers is that they can be exercised in accordance with the executive's will: Stat pro ratione voluntas. The nature of law, however, is to be constrained by rules. A tighter analogy would be a statute directing the President not to follow a particular interpretation of a statute or constitutional provision simply because that was the interpretation of his predecessor. Such a statute would not be unconstitutional, because it does not deprive the President of his independent power to interpret the law; it would merely tell him that he is not to be artificially restricted in its exercise. The statute does not interfere with any discretionary power of the President. On the scope of the power of executive law-interpretation generally, compare Paulsen, supra note 95, with Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267 (1996).
142. See, e.g., THE FEDERALIST No. 47, supra note 102, at 244 (James Madison) (noting that accumulation of powers in the same hands "may justly be pronounced the very definition of tyranny" and that a constitutional provision for "accumulation of power or . . . a mixture of powers having a dangerous tendency to such an accumulation" would be a decisive argument for "reprobation of the system"); THE FEDERALIST No. 48, supra note 102, at 250 (James Madison) ("[N]one of [the departments] ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."); THE FEDERALIST No. 51, supra note 102, at 261 (James Madison) (stating that the remedy to problem of concentration of power is to "so contriv[e] the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places"). For a general treatment, with more extensive discussion of the historical evidence, see Paulsen, supra note 95, at 228-62.
143. See, e.g., THE FEDERALIST No. 47, supra note 102, at 244 (James Madison) (noting that accumulation of powers in the same hands "may justly be pronounced the very definition of tyranny" and that a constitutional provision for "accumulation of power or . . . a mixture of powers having a dangerous tendency to such an accumulation" would be a decisive argument for "reprobation of the system"); THE FEDERALIST No. 48, supra note 102, at 250 (James Madison) ("[N]one of [the departments] ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."); THE FEDERALIST No. 51, supra note 102, at 261 (James Madison) (stating that the remedy to problem of concentration of power is to "so contriv[e] the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places"). For a general treatment, with more extensive discussion of the historical evidence, see Paulsen, supra note 95, at 228-62.
144. See, e.g., THE FEDERALIST No. 47, supra note 102, at 244 (James Madison) (noting that accumulation of powers in the same hands "may justly be pronounced the very definition of tyranny" and that a constitutional provision for "accumulation of power or . . . a mixture of powers having a dangerous tendency to such an accumulation" would be a decisive argument for "reprobation of the system"); THE FEDERALIST No. 48, supra note 102, at 250 (James Madison) ("[N]one of [the departments] ought to possess directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."); THE FEDERALIST No. 51, supra note 102, at 261 (James Madison) (stating that the remedy to problem of concentration of power is to "so contriv[e] the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places"). For a general treatment, with more extensive discussion of the historical evidence, see Paulsen, supra note 95, at 228-62.
145. A brief aside is appropriate concerning the use and misuse of "structural" constitutional arguments. It is sloppy nomenclature, and often simply sloppy thinking, to say that a statute is unconstitutional "because it violates the Constitution's separation of powers." Often the assertion is pure conclusion. The Constitution creates a system of separate and interdependent branches with different powers and checks on each other. A statute might violate a rule implicit in the structure and logic of Article I, a rule implicit in the structure and logic of Article II, a rule implicit in the structure and logic of Article III, or even a rule fairly deducible from the fact that each branch derives its enumerated powers directly from the Constitution rather than from one of the other branches. (The argument for judicial review, in The Federalist No. 78 and Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175-80 (1803), is the classic example of an argument of this last type, inferring from the independence of the branches that the Court need not regard Congress's interpretation of the Constitution as controlling the Court's.) But these are all species of textual arguments. There is no freestanding "Separation of Powers Clause" that contains its own statute-invalidating set of rules or standards; there is only the collection of texts that make up the system.
146. But cf. Romer v. Evans, 517 U.S. 620, 633 (1996) (implying that the exceptional or unusual nature of a law may be a factor contributing to its unconstitutionality under the Equal Protection Clause).
147. All of this assumes that the Supreme Court has been right all along in stating that the doctrine of stare decisis is a rule of policy, not a command of the Constitution. Of course, the Court could have been wrong in saying so, and simply repeated the error dozens of times. If so, that should not give the error special status. Repetition of erroneous analysis concerning the constitutional status of precedent would no more make that analysis sound than repetition of any other erroneous constitutional doctrine turns error into truth. The thesis of this Article, after all, is that Congress may require the Court to decide constitutional issues on the merits, without the thumb of precedent on the scale. The same premise necessary to the constitutionality of such a proposal - that precedents do not themselves possess constitutional status, and do not literally control subsequent constitutional interpretation - suggests, paradoxically, that the Court legitimately may revisit that constitutional premise. Were the Court to conclude, contrary to nearly all its earlier statements on the point, that some rule of stare decisis is commanded by the Constitution, it would follow that the Court should hold, consistent with that view, that Congress may not tamper with that constitutional rule. But to continue the paradox, such a ruling would confirm the premises of this Article: Prior judicial doctrine is not itself of constitutional status. If upon reconsideration of the merits of a constitutional issue the Court is persuaded that the prior doctrine is unsound, it may alter or abandon it. If that is true, stare decisis is simply a rule of judicial policy, not a rule of constitutional law. And if that is true, the policy of stare decisis should fall within the province of Congress under the Necessary and Proper Clause. Thus, if the Court is right that the doctrine of stare decisis is a mere rule of policy, Congress may adjust the policy. And if the Court is wrong about that - if some rule of stare decisis is implicit in the Constitution itself - the Court can reach such a conclusion only by violating such a rule of stare decisis with respect to the question of the constitutional status of stare decisis!
148. 28 U.S.C. § 1652 (1994) ("The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.").
149. Id. § 1738 ("The records and judicial proceedings of any court of any . . . State, Territory or Possession . . . shall be proved or admired in other courts within the United States and its Territories and Possessions. . . . Such Acts, records and judicial proceedings . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.").
150. See Act of May 26, 1790, ch. 11, 1 Stat. 122.
151. A more difficult question might be presented were Congress to abolish the doctrine of res judicata. The law of judgments may (or may not) be of constitutional dimension in the eyes of the Supreme Court. The Court has not said. Cases like Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), tend to suggest that, at least in some respects, the law of judgments is judicially created common law. In any event, it is clear that the Court has said that stare decisis (which is readily distinguishable from res judicata) is a doctrine of policy and practice only, not one of constitutional dimension. It also seems clear that at least some legislation altering what might otherwise be the judicial default rule for deciding the res judicata effect of a prior judicial decree is well accepted in practice. For example, Federal Rule of Civil Procedure 60(b), adopted pursuant to delegated congressional power under the Rules Enabling Act, is, in form, a direct regulation of judicial practice concerning res judicata, prescribing rules binding on the judiciary concerning when final judgments may be reopened. In Plaut v. Spendthrift Farm, 514 U.S. 211 (1995), the Supreme Court treated Rule 60(b) as one that " merely reflects and confirms the courts' own inherent and discretionary power." Id. at 233-34. Such a reading, unnecessary to the judgment in Plaut (Rule 60(b) is far different from a statute commanding the reopening of a judgment in a specific case, the issue presented by Plaut) seems in tension with some of the language of the Rule itself. Such a reading is also in tension with the Court's debate in Agostini v. Felton over whether or not the Court's action was consistent with the text of Rule 60(b). Compare Agostini v. Felton, 521 U.S. 203, 214-17, 234-40 (1997), with id. at 255-60 (Ginsburg, J., dissenting). This debate seems somewhat discordant with the notion that the Rule is merely a recitation of courts' "inherent and discretionary power," to use Plaut's words. Plaut, 514 U.S. at 234. Neither the majority nor the dissenters in Agostini cited Plaut's characterization of Rule 60(b).
152. 28 U.S.C. § 2283.
153. The limitation is well recognized. See, e.g., Parsons Steel v. First Ala. Bank, 474 U.S. 518 (1986). The Supreme Court has recognized the converse as well: Congress may remove the traditional equitable discretion of courts to decline to issue injunctions. See, e.g., Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982) ("Congress may intervene and guide or control the exercise of the courts' discretion . . . ." (emphasis added)); TVA v. Hill, 437 U.S. 153, 187-88 (1978). Congress has thus been recognized as possessing the power to mandate or withhold a particular form of traditional judicial relief and to override customary judicial practice to the contrary.
154. Weinberger, 456 U.S. at 313.
155. See Bennett v. Spear, 520 U.S. 154, 162 (1997) ("[T]hese 'judicially self-imposed limits [prudential standing rules] on the exercise of federal jurisdiction,' . . . are 'founded in concern about the proper - and properly limited - role of the courts in a democratic society,' . . . ; but unlike their constitutional counterparts, they can be modified or abrogated by Congress . . . ." (citations omitted)).
156. 521 U.S. 811 (1997).
157. Id. at 820 n.3.
158. 520 U.S. 154.
159. Id. at 162.
160. 524 U.S. 11 (1998)
161. See id. at 20. It had long been assumed that Congress possessed such authority. See, e.g., Association of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 154 (1970) ("Congress can, of course, resolve the question one way or another, save as the requirements of Article III dictate otherwise.") It has likewise been taken for granted that non-constitutionally based judicial abstention doctrines may be abrogated by congressional statute. See, e.g., Rex E. Lee & Richard G. Wilkins, An Analysis of Supplemental Jurisdiction and Abstention with Recommendations for Legislative Action, 1990 BYU L. REV. 321, 361.
162. See Raines, 521 U.S. at 820 n.3.
163. The closeness of the doctrinal analogy between prudential standing and stare decisis is fairly remarkable. In language strikingly similar to its description of the doctrine of stare decisis, the Court has characterized prudential standing as a doctrine that is "part of judicial self-government," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) - indeed, a "rule of judicial self-governance" that is "closely related to Article III concerns," Warth v. Seldin, 422 U.S. 490, 509 (1975) (emphasis added). It is a doctrine that embodies "self-imposed restraints on the exercise of judicial power," United States Parole Comm'n v. Geraghty, 445 U.S. 388, 410 (1980), the content of which is "to be shaped by the decisions of the courts as a matter of sound judicial policy," Asarco Inc. v. Kadish, 490 U.S. 605, 613 (1989). The language used by the Court to characterize the doctrine of prudential standing is so similar to the language used to describe the doctrine of stare decisis that, were one to read the above-quoted texts, without attribution, to someone conversant with constitutional law and ask him or her to name the doctrine described, "stare decisis" is probably as likely a response as "prudential standing." If a "rule of judicial self-governance" embodying "self-imposed restraints on the exercise of judicial power" that are "shaped by the decisions of the courts as a matter of sound judicial policy" and "founded in concern about the proper . . . role of the courts," Bennett, 520 U.S. at 162 (citations omitted), is nonetheless one that is "subject to the control of Congress," Asarco, 490 U.S. at 613, and thus "can be modified or abrogated by Congress," Bennett, 520 U.S. at 162, it is hard to claim a constitutional immunity for the similarly described doctrine of stare decisis, which is "a principle of policy," e.g., Seminole Tribe v. Florida, 517 U.S. 44, 63 (1996); Helvering v. Hallock, 309 U.S. 106, 119 (1940), a "policy judgment," Agostini v. Felton, 521 U.S. 203, 235 (1997), and "informed by a series of prudential and pragmatic considerations," Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992), from the power of Congress to modify or abrogate such a matter of judicial policy pursuant to its Necessary and Proper Clause legislative power.
164. Like the Federal Rules of Civil Procedure, the Federal Rules of Evidence are enacted pursuant to delegated congressional power, under a lawmaking process specified in the Rules Enabling Act, 28 U.S.C. §§ 2071-2074 (1994). To be sure, the Supreme Court plays a role in the rulemaking process, but its role is dictated by statute and its proposed rules are subject to revision, repeal, and amendment by Congress. In a very real sense, then, every one of the Federal Rules of Evidence is enacted pursuant to the legislative power of Congress under the Necessary and Proper Clause, not pursuant to the judiciary's own constitutional powers.
165. Id.
166. See, for example, FED. R. EVID. 704(b), which was added by Congress as part of the Insanity Defense Reform Act of 1984, Pub. L. No. 98-473, § 406, 98 Stat. 1837, 2067-68; and FED R. EVID. 413-415, which was enacted by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 320935(a), 108 Stat. 1796, 2136-37. See also 18 U.S.C. § 17 (1994) (assigning to criminal defendant the burden of proving the affirmative defense of insanity, and requiring such proof by clear and convincing evidence).
167. French v. Duckworth, 178 F.3d 437, 450 (7th Cir.) (Easterbrook, J., dissenting from the denial of rehearing en banc), cert. granted, 120 S. Ct. 578 (1999). Duckworth is one of many cases currently pending in the lower federal courts challenging various aspects of the Prison Litigation Reform Act of 1996, 18 U.S.C.A. § 3626 (West Supp. 1999). The Supreme Court's decision in Duckworth may provide further indirect support for the legitimacy of a statute abrogating stare decisis.
168. For a fascinating discussion of "proving the law," see Gary Lawson, Proving the Law, 86 NW. U. L. REV. 859 (1992).
169. See FED. R. CIV. P. 52(a) ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.").
170. See, e.g., Administrative Procedure Act, 5 U.S.C. § 706(2)(e) (1994) (directing the reviewing court to set aside certain agency actions, findings, and conclusions, if it finds them to be "unsupported by substantial evidence").
171. See Freedom of Information Act, 5 U.S.C. § 552(a)(4)(B) ("On complaint . . . the court shall determine the matter de novo, . . . and the burden is on the agency to sustain its actions.").
172. 467 U.S. 837 (1984).
173. For a general discussion of the Bumpers Amendment, see, for example, STEPHEN G. BREYER & RICHARD B. STEWART, ADMINISTRATIVE LAW AND REGULATORY POLICY 319 (3d ed. 1992); Ronald M. Levin, Review of "Jurisdictional" Issues Under the Bumpers Amendment, 1983 DUKE L.J. 355; Ronald M. Levin, Scope of Review Legislation: The Lessons of 1995, 31 WAKE FOREST L. REV. 647 (1996). Justice Scalia, in an article commenting on the Chevron doctrine, has suggested fairly clearly that Congress could abrogate the doctrine by statute, either for a particular administrative statute or wholesale. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 515-16 (assuming that Congress could specify a rule of non-deference to agency interpretations of law).
174. For a general discussion of the Bumpers Amendment, see, for example, STEPHEN G. BREYER & RICHARD B. STEWART, ADMINISTRATIVE LAW AND REGULATORY POLICY 319 (3d ed. 1992); Ronald M. Levin, Review of "Jurisdictional" Issues Under the Bumpers Amendment, 1983 DUKE L.J. 355; Ronald M. Levin, Scope of Review Legislation: The Lessons of 1995, 31 WAKE FOREST L. REV. 647 (1996). Justice Scalia, in an article commenting on the Chevron doctrine, has suggested fairly clearly that Congress could abrogate the doctrine by statute, either for a particular administrative statute or wholesale. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 515-16 (assuming that Congress could specify a rule of non-deference to agency interpretations of law).
175. For a general discussion of the Bumpers Amendment, see, for example, STEPHEN G. BREYER & RICHARD B. STEWART, ADMINISTRATIVE LAW AND REGULATORY POLICY 319 (3d ed. 1992); Ronald M. Levin, Review of "Jurisdictional" Issues Under the Bumpers Amendment, 1983 DUKE L.J. 355; Ronald M. Levin, Scope of Review Legislation: The Lessons of 1995, 31 WAKE FOREST L. REV. 647 (1996). Justice Scalia, in an article commenting on the Chevron doctrine, has suggested fairly clearly that Congress could abrogate the doctrine by statute, either for a particular administrative statute or wholesale. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 515-16 (assuming that Congress could specify a rule of non-deference to agency interpretations of law).
176. For a general discussion of the Bumpers Amendment, see, for example, STEPHEN G. BREYER & RICHARD B. STEWART, ADMINISTRATIVE LAW AND REGULATORY POLICY 319 (3d ed. 1992); Ronald M. Levin, Review of "Jurisdictional" Issues Under the Bumpers Amendment, 1983 DUKE L.J. 355; Ronald M. Levin, Scope of Review Legislation: The Lessons of 1995, 31 WAKE FOREST L. REV. 647 (1996). Justice Scalia, in an article commenting on the Chevron doctrine, has suggested fairly clearly that Congress could abrogate the doctrine by statute, either for a particular administrative statute or wholesale. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 515-16 (assuming that Congress could specify a rule of non-deference to agency interpretations of law).
177. See 28 U.S.C. § 144 (1994); id. § 455.
178. See French v. Duckworth, 178 F.3d 437, 450 (7th Cir.) (Easterbrook, J., dissenting from the denial of rehearing en banc), cert. granted, 120 S. Ct. 578 (1999).
179. See David E. Engdahl, Intrinsic Limits of Congress' Power Regarding the Judicial Branch, 1999 BYU L. REV. 75, 158-74. Professor Engdahl challenges some of these longstanding and long-accepted doctrines but readily concedes that he is an outlier on such matters. See id. at 79. One may accept Professor Engdahl's general formulation about lack of congressional power to legislate in ways that impair "judicial potency" - the actual power of the judiciary entailed in "[t]he judicial Power" that Article III assigns to the courts alone - and yet disagree (as I do) with all of his applications of that formulation that would invalidate longstanding and long-accepted congressional regulations of the judiciary. Those disagreements would take me far afield from my purpose here. It is sufficient here to note that Engdahl's conclusions would invalidate a great deal of existing statutory law regulating judicial structure and conduct.
180. For important recent contributions to the literature addressing these questions, see id.; and Martin H. Redish, Federal Judicial Independence: Constitutional and Political Perspectives, 46 MERCER L. REV. 697 (1995).
181. My brief, tentative answers to the hypotheticals I posed in the previous paragraph are as follows: Congress lacks power to control the content or manner of judicial opinion-writing; where a court has jurisdiction - literally "power to speak the law" - judges may decide in what manner of speaking they will speak the law (so to speak). A supermajority voting rule probably violates the default rule implicit throughout the Constitution for aggregating the views of multi-member bodies: majority rule. Each house of Congress may, by rule, alter this default rule for its own deliberations. See John O. McGinnis & Michael B. Rappaport, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE L.J. 483, 485 (1995). But no such power is granted to Congress with respect to the voting rule for multi-member courts, and denying the decision of a majority of judges on a multi-member court the status of a judgment of the court, contrary to the court's own view of the matter, might well violate the prohibition against legislative alteration of final judgments of courts. Cf. Plaut v. Spendthrift Farm, 514 U.S. 211, 240 (1995) (holding that an act of Congress allowing final judgments of the judicial branch to be reopened violates separation-of-powers principles).
182. For similar reasons, explained below, Congress cannot mandate stare decisis in constitutional cases. See infra notes 161-165 and accompanying text.
183. Of course, if the theory of this Article is correct, the fact that a statute abrogating stare decisis might be deemed inconsistent with prior judicial precedent interpreting Article III would not be a persuasive argument against the constitutional validity of the statute. There is a certain circularity, however, to both the argument that precedent should be disregarded in considering whether Congress has power to direct that precedent be disregarded and the opposite argument that precedent establishes the lack of congressional power to abrogate precedent. My point here is that no Supreme Court precedent holds or suggests, directly or indirectly, that Congress lacks the constitutional power to abrogate the judicial policy of stare decisis. That fact itself - especially when combined with judicial decisions upholding other exercises of the Necessary and Proper Clause power in matters touching the case-deciding function of the judiciary, and with the Court's pronouncements concerning the nature of stare decisis as a mere rule of policy and practice -powerfully reinforces the argument for the constitutionality of such a statute. The fact that not even mutable judicial doctrine suggests a persuasive argument against the constitutionality of such a statute surely is itself entitled to some persuasive weight.
184. Cf. United States v. Klein, 80 U.S. (13 Wall.) 128 (1871) (invalidating a statute that essentially dictated the result in judicial cases by establishing a conclusive presumption concerning the legal effect of a presidential pardon in a manner inconsistent with both the President's constitutional pardon power and the Supreme Court's prior interpretation of the President's pardon power). The Klein opinion is not a model of clarity, but is probably best read for the proposition that Congress may not direct the courts to decide cases "in a particular way," Klein, 80 U.S. (13 Wall.) at 146; that is, Congress may not dictate particular outcomes (the statute at issue was not at all directed at interpretive methodology), especially not where such a directive would essentially enable one party to a dispute (the government) to direct the courts to decide a category of cases in its favor. (Another possible reading is that the statute at issue in Klein violated the President's constitutional pardon power. Cf. supra note 119.) See PAUL M. BATOR ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 369 (3d ed. 1988) (treating Klein as standing for the principle that it is "an unconstitutional invasion of the judicial function when Congress purports . . . to bind the Court to decide a case in accordance with a rule of law independently unconstitutional on other grounds.").
185. See Plaut, 514 U.S. at 240. In marked contrast with Klein, the Plaut opinion is a model of clarity. But the opinion's precise expression also makes clear the narrow ground of decision: Congress may not retroactively command federal courts to reopen final judgments, because the Article III power to decide cases entails a power to decide them finally, subject to review only by other Article III courts in the chain of appeal. See Plaut, 514 U.S. at 218-19. Plaut's discussion makes it clear the Court's view that Congress not only may not prescribe particular outcomes in judicial cases, but also may not set aside judgments, require new trials, or otherwise abrogate the finality of judicial decisions by the Article III judiciary. See id. at 219-27. Nothing about a statute abrogating stare decisis would contradict this holding or its supporting analysis, because nothing in such a statute would reopen or set aside any final judgment in a particular case; it would merely direct that such final judgments do not bind subsequent courts in deciding the cases before them, involving different parties. Such a directive is entirely consistent with Supreme Court practice, the Supreme Court's stated doctrine, and its repeated pronouncements that the doctrine of stare decisis is a rule of practical policy, not a rule of law.
186. Professor David Engdahl has given the judiciary's "competenc[y] to process and resolve litigation" within an assigned subject matter jurisdiction the apt label "judicial potency." Engdahl, supra note 152, at 82-83. A statute abrogating stare decisis would not impair judicial potency because it does not impair the competency to decide cases. It would merely remove the legislative potency of judicial decisions: the perceived power of a judicial decision in a precedent case to affect judicial decision of a subsequent case, irrespective of the correctness of the precedent decision or the persuasiveness of its reasoning. I disagree with some of Professor Engdahl's conclusions concerning what "[t]he judicial Power" of Article III necessarily entails in terms of core "judicial potency" - attributes of the judicial process with which Congress may not interfere - but those disagreements do not affect the validity of my conclusion here. One can accept Professor Engdahl's approach and readily conclude that the doctrine of stare decisis is not an attribute of "judicial potency" immune to congressional policy judgment under the Necessary and Proper Clause, even if one disagrees with some of Professor Engdahl's other conclusions.
187. For an outstanding and thorough treatment of the varieties of potential impairments of the judicial independence conferred by Article III of the Constitution, see Redish, supra note 153. Professor Redish does not address the question of congressional power to abrogate the policy of stare decisis through a statutory enactment, but his general analysis seems congenial to such a result: When the issue concerns the power of Congress to limit federal judicial power to find sub-constitutional rules of decision, however, the attacks on congressional authority become considerably more problematic. Congress has power under Article I to adopt laws that provide substantive rules of decision in the federal courts. The unrepresentative, unaccountable federal judiciary has no authority to ignore or supplant these rules of decision, short of a finding of [substantive] unconstitutionality. Id. at 715; see also id. at 719-21 (discussing Klein). A statute abrogating stare decisis meets Redish's criteria that congressional enactments regulating judicial practice, procedure, and rules of decision not prescribe outcomes in particular cases (even though they will doubtless have an impact in individual litigation), not withdraw from the judiciary the power to decide cases in accordance with relevant facts, and not be tied to a particular substantive rule of decision but be "substantively agnostic." Id. at 721.
188. See Myers v. United States, 272 U.S. 52 (1926). The holding in Myers is undermined by Humphrey's Executor v. United States, 295 U.S. 602 (1935); and Morrison v. Olson, 487 U.S. 654 (1988). I offer the Appointments Clause holding of Myers merely by way of illustration: Excellent arguments can be made (and have sometimes been accepted) that a constitutional power does not imply the existence of an equal-and-opposite power to do the reverse.
189. See generally THE FEDERALIST No. 41 (James Madison), NOs. 74, 75 (Alexander Hamilton). Even if the best reading of the War Clause is that it does not confer a congressional power to legislate "un-war," that does not mean that Congress lacks power to accomplish the same result by use of another legislative power (for example, its control over appropriations).
190. See Goldwater v. Carter, 617 F.2d 697 (D.C. Cir. 1979) (en banc) (per curiam) (ruling that the President possesses the power of treaty termination), vacated on other grounds, 444 U.S. 996 (1979) (concluding on a mixture of grounds, none commanding a majority of the Court, that the treaty-termination issue presented in Goldwater was nonjusticiable, and dismissing a suit challenging the President's termination of a treaty).
191. See supra Sections III.B, III.D.
192. This is not to say that Congress might not be able to enact in statutory form the substance of a judicial decision interpreting the Constitution, if it has some enumerated power to legislate concerning the matter at issue. See generally Ira C. Lupu, Statutes Revolving in Constitutional Law Orbits, 79 VA. L. REV. 1 (1993). This does not entrench the constitutional decision as a matter of constitutional law, however. It simply creates a statutory rule where the courts have held that a congruent constitutional rule also exists. It does not purport to prevent courts from reconsidering and reversing the constitutional rule if persuaded that it is an unsound interpretation of the Constitution. The statutory rule still would exist in such event, but Congress could repeal it by the same Article I, Section 7 process it may use to adopt, amend, or repeal any other statute.
193. See supra note 38 (collecting authorities suggesting such a conclusion).
194. See, e.g., Laurence H. Tribe, Jurisdictional Gerrymandering: Zoning Disfavored Rights out of the Federal Courts, 16 HARV. C.R.-C.L. L. REV. 129 (1981) (arguing that statutes withdrawing jurisdiction from the federal courts on specific issues effectively, and unconstitutionally, shortcut the constitutional amendment process).
195. See, e.g., Jones v. United States, 119 S. Ct. 1215, 1222 (1999) (collecting cases supporting the canon that statutes are to be construed to avoid constitutional difficulty if fairly possible).
196. Obviously, the best approach would be to abrogate stare decisis in all constitutional cases. If Congress chooses to proceed one step at a time, however, or perceives the need to abrogate stare decisis more urgently in the area of substantive due process or abortion specifically, it is not unconstitutional for Congress simply to take that one step. Similarly, Congress need not attempt to prescribe that lower courts are free to disregard erroneous decisions of higher courts. While I believe that, as a matter of first principles, lower-court judges' oaths require them to adhere to the Constitution and federal statutory and treaty law rather than prior judicial decisions (of any level of court) departing from these sources of law, see Paulsen, Accusing Justice, supra note 9, at 77-88, that position is obviously controversial. A prominent judge of the California Court of Appeal who adopted this position, see Morrow v. Hood Communications, 69 Cal. Rptr. 2d 489, 493 & n.5 (Ct. App. 1997) (Kline, J., dissenting), was hauled up on disciplinary charges for such action. The disciplinary inquiry lasted many months and generated considerable heated discussion before it was ultimately dropped. See Decision and Order of Dismissal Regarding Justice J. Anthony Kline, Inquiry #151 (Aug. 19, 1999). The position that lower-court judges should follow their own view of the law rather than prior judicial decisions is also directly contrary to explicit decisions of the U.S. Supreme Court. See Agostini v. Felton, 521 U.S. 203, 235-36 (1997); Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 477, 484 (1989); Hutto v. Davis, 454 U.S. 370, 374-75 (1982) (per curiam). That does not make the position wrong, but it does make it prudent for Congress not to attempt to abrogate "vertical" stare decisis by statute, if it hopes to have the Supreme Court agree with the constitutionality of the statute. A statute that does nothing more than specify that the same court (at whatever level) should not adhere to prior interpretations that it presently considers wrong, merely on the basis of the policy of stare decisis, would not challenge any holding of the Supreme Court. A statute abrogating vertical stare decisis would. A statute that leaves the issue untouched would not require lower courts to adhere to higher-court precedent, but it would not directly contradict Supreme Court precedent on that point either.
197. See Paulsen, Enterprise, supra note 6, at 681. Consider just a few notable constitutional examples over the past ten years. In 1991, the Court overruled prior constitutional precedent in Payne v. Tennessee, 501 U.S. 808, 817-30 (1991), rejecting the argument that stare decisis commanded a different result. The next year, 1992, the Court adhered to constitutional precedent (in part) in Casey, but overruled two other abortion decisions. See supra note 4. Three years later, in 1995, the Court overruled a major constitutional precedent, with Adarand Constructors v. Peña, 515 U.S. 200, 227-31 (1995), which overruled Metro Broadcasting v. FCC, 497 U.S. 547, 563-66 (1990). And in 1997, the Supreme Court, in Agostini v. Felton, 521 U.S. 203, 216, 218-24 (1997), overruled Aguilar v. Felton, 473 U.S. 402, 413 (1985), although the Court noted that the real overruling had been accomplished, sub silentio, in 1993, in Zobrest v. Catalina Foothills School District, 509 U.S. 1, 12-13 (1993).
198. If a selective statutory abrogation of stare decisis is constitutionally underinclusive, the remedy should be to expand the abrogation, not to contract it. Somewhat revealing, however, is how hard it is to come up with an example of a major constitutional decision of the Supreme Court within the past thirty years, other than Casey, that seems to rest quite so heavily on the doctrine of stare decisis. While the Court's opinions often seem excessively precedent-focused-taking prior cases as their starting point, rather than first principles of constitutional text, structure, and history - they rarely seem precedent-bound in the sense that the Court reaches a result contrary to its apparent inclinations solely or largely because of the stare decisis effect of past decisions. Casey is really quite striking in this respect.
199. City of Boerne v. Flores, 521 U.S. 507 (1997), seems to be an illustration of this phenomenon. The Court's arguments in the case can be (and have been) criticized effectively. See Douglas Laycock, Conceptual Gulfs in City of Boerne v. Flores, 39 WM. & MARY L. REV. 743 (1998); McConnell, supra note 82. However, a more direct and equally pertinent observation about Boerne is that the Court simply resented a statute whose explicit premise was that the Court's earlier decision in Employment Division v. Smith, 494 U.S. 872 (1990), interpreting the Free Exercise Clause, was wrong and should be rendered an effective nullity. Behind the (weak) reasoning of Boerne lies thinly veiled judicial hostility to Congress's asserting any role as interpreter and enforcer of the Bill of Rights, if that role involves Congress's assertion that the Court has misinterpreted the Constitution in an important way. Without much exaggeration, Boerne may be taken as a judicial supremacist statement that Congress may not pass an otherwise constitutional statute if it insults the Court's sense of its own dignity and supremacy.
200. Casey comes shockingly close to saying exactly this: The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation. Planned Parenthood v. Casey, 505 U.S. 833, 865-66 (1992) (emphasis added).
201. Cf. id. at 865 ("[A] decision without principled justification would be no judicial act at all."). For a general statement of the theory that each branch possesses legitimate constitutional authority to resist in good faith the interpretive positions of the others that they believe depart from a correct understanding of the Constitution, see Paulsen, supra note 95.
202. See Gary Lawson & Christopher D. Moore, supra note 119, at 1312 n.209 ("[W]e see no escape from the conclusion that Congress has the power to impeach and remove judges who do not, in the ultimate judgment of Congress, decide cases in accordance with governing law.").
203. As a practical matter, it is probably true that this is most likely to be the case only after at least some new appointments to the Court. Yet Casey shows that new appointments alone are not always sufficient to accomplish the overruling of major cases. On the basis of their prior votes, Justices O'Connor and Kennedy should have voted to sustain the entirety of the Pennsylvania statute at issue in Casey, and probably overruled Roe at least to the extent it was inconsistent with such an outcome. But they did not. Assuming that they were acting in (intended) good faith, the outcome and opinion in Casey shows the enormous political and psychological pressure that can be placed even on life-tenured Justices whose commitment to a particular substantive interpretation of the Constitution is not strong, on behalf of an existing decision that has acquired a large and influential political constituency. The case also shows the perceived pressure of stare decisis as a constraint on judicial action (at least in the absence of congressional action) on such Justices. It is entirely possible that future "conservative" judicial appointees to the Court - at least, those who could survive the confirmation process - could succumb to, or perceive, similar pressures not to overrule Roe, absent action by the political branches providing an alternative institution in which the Court (and political constituencies) can locate political responsibility for the outcome.