Verification Re: your understanding of precedent

[Evan Caminker]

Michael Paulsen wrote earlier that: "All that follows from inferiority is
the capacity to
>be reversed by reviewing courts in the pyramid"; and that "All that
>follows from
>"Supreme" is that no other court has authority to review and revise
>the Supreme Court's judgments."

I am not so sure.  With apologies for the plug, see Caminker, Why Must
Inferior Courts Obey Supreme Court Precedents?, 46 Stan. L. Rev. 817 (1994)
(developing argument that constitutional concepts of a "supreme" court and
"inferior" courts/tribunals that are "inferior to" the supreme court imply
a requirement of lower court fidelity to supreme court interpretations of law).

But I want to propose for consideration a different perspective here.  Tom
Grey and others have (persuasively, to my mind) suggested that rule of law
values such as consistency, coherence, and determinacy might provide a
current judge with at least one legitimate reason to favor interpretation X
over Y just because interpretation X rather than Y was embraced in the
past.  In this view, stare decisis can be understood as an interpretive
methodology designed to implement the Constitution in light of rule of law
values.

I wonder whether one can reach the same result through a different
institutional perspective.  Thus far, the discussion has assumed that each
individual federal judge has an obligation to interpret the Constitution as
she sincerely believes is correct.  In other words, the interpretive
subject of constitutional analysis is the single judge.  I'm not sure that
perspective is constitutionally required, or otherwise
appropriate.  Certainly many people -- I presume even some who disfavor
stare decisis -- would say it is legitimate for a judge on a multi-member
court to sign onto an opinion that does not conform to her best
understanding of the Constitution in order to serve some institutional
value (e.g., create a 5-Justice majority to set binding precedent).    One
way (though admittedly not the only way) to understand the legitimacy of
this court-focused deference is that it is the "court," and not each
individual judge, that properly constitutes the interpretive subject.  In
other words, it is the court, and not each judge, that must interpret the
Constitution as correctly as possible, and this group-objective may allow
an individual judge to deviate from her own sincere views in order to
join/construct the "court opinion."  (This perspective is more clearly
embraced by various European judicial systems where the court issues a
single per curiam opinion without the publication of any concurring or
dissenting views).

Can this shift in perspective from judge to court be extended further?  Why
not view the judicial system as a whole as the interpretive subject, such
that it is the system en toto, rather than each individual court, that
bears the obligation to interpret the constitution correctly?  This
(perhaps coincidentally) fits comfortably with Chief Justice Marshall's
admonition that "saying what the law is" is the province of the "judicial
department."  From this perspective, once can view doctrines of stare
decisis and hierarchical precedent as rules that facilitate a coordinated
"departmental" interpretation of the law over time.  The rules themselves
might be viewed as "necessary and proper" means of ensuring some
interpretive coordination, whether those rules are imposed by Supreme Court
mandate (e.g., the edict that lower courts should not anticipate
overrulings of Supreme Court precedents) or have evolved over time (e.g.,
the common law rule of stare decisis).  Let us not forget that each branch,
not just the legislature, has "implied powers" necessary to effectuate
their enumerated powers, in this case the "judicial Power."  (This
perspective raises the intriguing question -- intriguingly addressed by
Michael Paulsen in his recent piece in Yale -- whether Congress may use the
Necessary and Proper Clause to trump the courts' implied powers and
mandate, prohibit, or shape rules of stare decisis.)

In sum, might stare decisis be viewed as a self-imposed institutional
mechanism to ensure that the interpretation of the Constitution supplied by
the "judicial department" as a whole, rather than any discrete court or
discrete judge, is most likely "correct"?  This perspective would generate
a built-in tendency towards consistency and coherence, and thus would
dovetail nicely with the "rule of law" methodological approach suggested by
others.

Evan Caminker
(on leave at the Dept of Justice; written in my individual capacity)




Professor Evan Caminker
University of Michigan Law School
625 South State Street, Ann Arbor, MI  48109-1215
ph:  734-763-5695;  fax: 734-763-9375
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