PRECEDENT ON THE HIGH COURT: MORE ON AND :
Part Two of a Three-Part Series on Stare Decisis

By AKHIL REED AMAR AND VIKRAM DAVID AMAR
Friday, Dec. 27, 2002

What kind of weight should the Supreme Court give its past decisions? In particular, should the Court this Term reaffirm its earlier decisions in Regents v. Bakke, and Bowers v. Hardwick?

These are among the biggest questions facing the Justices as they approach this Term's most watched cases, involving affirmative action at the University of Michigan and a same-sex sodomy law in Texas.

In our last column, we described the Rehnquist Court's general approach to precedent, as exemplified in the 1992 case of Planned Parenthood v. Casey. In Casey, the Court insisted that it should follow its own earlier precedents--even precedents that (in the eyes of a current majority) misconstrued the Constitution itself--unless there were some special reasons for overruling, above and beyond the plain error of the earlier interpretation.

In response to this Casey test, we began to sketch out a narrower vision of stare decisis. The Constitution, not the case law, is the supreme law of the land. If the case law conflicts with the Constitution, why, we asked, should the case law prevail?

Today, we consider one traditional answer--reliance--and apply this reliance framework to the Michigan and Texas cases. In a future column, we will consider a few more intriguing issues that may arise when the Court tries to assess the precedential weight of Bakke and Bowers.

Judicial Power and Reliance Interests: A General Framework

Judicial power is by its nature retrospective; the Court applies law to factual circumstances that have already occurred. Erroneous precedents themselves are part of the factual backdrop against which the Court decides a current case. Thus, they are part of the "facts on the ground" that properly influence the application of retrospective judicial power.

These facts may in some instances limit the ability of the Court to abruptly change course, even if persuaded of past error. For example, even if the Court were tomorrow to deem erroneous its longstanding precedents upholding the constitutionality of paper money, surely the Justices could not ignore the vast economic system that has built up in reliance on paper.

Erroneous judicial precedents are not unique in this respect. Prior unlawful or even unconstitutional conduct of other branches may likewise create faits accomplis that courts cannot easily reverse afterwards. When a President commits troops or makes deals with other countries, for instance, even in arguable violation of international law or the Constitution, there may well be little that courts can do to immediately nullify or limit the effect of such Presidential usurpations.

An unconstitutional federal statute might likewise create strong institutional realities that cannot be ignored or immediately undone by judges, as John Marshall noted at the outset of his famous 1819 decision in McCulloch v. Maryland.

This feature of judicial underenforcement is built into the very structure of Article III, in which judicial review can sometimes occur long after certain practices have become settled and virtually impossible for courts to reverse. Some mistakes simply cannot be easily rectified right away.

But that does not mean that we must live with--and keep repeating and reaffirming--mistakes forever. When the Court makes a mistake in interpreting the Constitution, and later admits making the mistake, there are often ways that the other branches of government can structure things going forward in a way that is more consistent with the proper constitutional order.

Importantly, these other branches of government may be able to return to a constitutionally proper regime by acting purely prospectively in a way that judges sometimes should not or cannot, because of their inherently retrospective character.

Imagine, for example, a legislature that responds to an entrenched judicial misinterpretation of the Constitution by enacting a statute calling for a gradual ten-year phase-in of a new regime that would be more consistent with first constitutional principles.

Were the Court to announce such a phase-in on its own--"the constitutional rule is X today, Y next year, and Z in ten years"--this announcement might raise serious questions about impermissible judicial "legislation." But it is not likewise problematic for a legislature to legislate new rules; that, after all, is what legislatures are supposed to do.

In situations like this, it is crucial for judges to tell us if they have indeed erred in the past so that the other branches may properly ponder their constitutionally permissible options. Justices, of course, may not relish confessing error, but they have no proper warrant for refusing to do so when called to account.

Notwithstanding recent self-serving pronouncements of judicial supremacy, other branches of government have important roles to play in constitutional conversation, and the success of this conversation depends ultimately on good faith and candor on the part of all participants, including the Court.

The Court's duty, then, is not, as Casey would have it, to affirm and extend precedent without deciding whether it is right or wrong. Rather, it is first to admit error whenever the Court finds that error has occurred, and then to consider whether special reliance factors apply and how those factors might constrain the ability of the Court, and perhaps other branches as well, to set things right.

Applying the Framework: Bakke

Now apply all this to Bakke and Bowers.

Bakke first. On a technical level, it's worth emphasizing that one part of Justice Powell's opinion (Part V.C) was joined by four other Justices. In this section, Justice Powell spoke not just for himself but for the Court. And in that section, the Court reversed the lower court--which had prohibited all race-conscious admissions programs--and declared that public universities could indeed use non-quota plus plans, a la Harvard, that explicitly involved "competitive consideration of race and ethnic origin."

This is Bakke's core technical legal holding--quotas, no; Harvard-style pluses yes. And this is the constitutional interpretation that the American public and many public and private universities have indeed internalized and relied upon in fashioning important aspects of American education policy. An entire generation of Americans has been schooled under Bakke-style affirmative action, with the explicit blessing of - indeed, following a how-to-do-it manual from - the U.S. Reports.

And the issue is not merely limited to public universities. Title VI of the 1964 Civil Rights Act applies to the vast array of private schools and universities that receive federal funds. In the past, Title VI has been construed to hold these private schools to the same standards applicable against public universities via the Fourteenth Amendment.

If the current Court were to overrule Bakke's interpretation of the Fourteenth Amendment by banning modest plus-systems, and then were to apply the same rules to all private universities receiving federal funds, a sharp resegregation of higher education might occur. The possible institutional dislocations and social upheavals are rather startling to contemplate.

Of course, much the same might have been said in 1953 about the dislocations and upheavals likely to result from overruling Plessy v. Ferguson. Perhaps in light of all this, the Court did try to phase in its remedies via the notorious "all deliberate speed" formula. Also, in the 15 years before Brown v. Board of Education, the Court in a series of decisions had begun to signal its willingness to move away from Plessy. For this and many other reasons, the defenders of Jim Crow could hardly claim to be utterly unprepared for an eventual repudiation of Plessy.

Arguably, various Justices over the last dozen years have likewise been sending signals that Bakke was perhaps mistaken and should not be taken for granted. In a series of cases over the last decade involving race-based affirmative action in the business, as opposed to educational, setting, some Justices have used broad language to condemn a variety of race-conscious governmental programs

At the end of the day, then, whether reliance interests argue strongly in favor of Bakke depends in part upon how broadly or narrowly we should read the more recent post-Bakke cases involving non-education affirmative action arenas. We'll return to some of these issues in a future column.

Applying the Framework: Bowers

As far as reliance is concerned, Bowers is much easier. In 1986, the Bowers Court upheld a Georgia criminal law that prohibited sodomy. In doing so, the Court rejected a challenge brought by a homosexual man who argued that he had a privacy right under the due process clause of the Fourteenth Amendment to engage in consensual sodomy in his own home.

If a majority of today's Justices think that Bowers was wrongly decided on its facts, it is hard to see any strong reliance argument that should stand in the way of repudiating the decision.

First, the Texas statute at issue this Term, unlike the Georgia law, expressly prohibits only same-sex sodomy. That gender-based trigger raises equal protection claims that are being actively pressed in the Texas case, but that were explicitly left open by the Bowers Court. No one can reasonably rely on something the Supreme Court itself says it is leaving open.

Second, and more generally, it is not clear how state legislatures (or the majorities of voters who support them) might have relied on Bowers, in any event. None of the (relatively few) anti-sodomy statutes enacted by states were adopted after Bowers in reliance on any roadmap for legislation that Bowers set up. Indeed, the trend since Bowers in various states has been to de-criminalize sodomy.

Also, important post-Bowers cases like Romer v. Evans and United States v Virginia (the VMI case)--not to mention Casey itself--have arguably departed from Bowers in key ways, and thus further undercut any possible reliance argument in this area of law. In Romer and Casey, the Court rejected the dissenting Justices' broad readings of Bowers, and in all three cases, the Court used equality principles to strike down state practices reflecting strongly traditionalist views of sex and sexuality.

In sum, even if Bakke were seen as wrongly decided, there are important reliance reasons for judges to go slow in imposing a new legal regime. But no similarly strong reliance interest applies to Bowers.


Akhil Reed Amar and Vikram David Amar are brothers who write about law. Akhil graduated from Yale College and Yale Law School, clerked for then-judge Stephen Breyer, and teaches at Yale Law School. Vikram graduated from U.C. Berkeley and Yale Law School, clerked for Judge William Norris and Justice Harry Blackmun, and teaches at U.C. Hastings College of Law. Their "brothers in law" column appears regularly in Writ, and they are also occasional contributors to publications such as the New York Times, the Los Angeles Times, and the Washington Post. Jointly and separately, they have published over one hundred law review articles and five books.

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