учебный год 2023 / The power of Congress over the rules of precedent
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Duke University School of Law
The Power of Congress over the Rules of Precedent
Author(s): John Harrison
Source: Duke Law Journal, Vol. 50, No. 2 (Nov., 2000), pp. 503-543
Published by: Duke University School of Law
Stable URL: http://www.jstor.org/stable/1373096
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Essay
THE POWER OF CONGRESS OVER THE RULES
OF PRECEDENT
JOHNHARRISONt
In the PassengerCases' Chief Justice Taney expressed his willingness always to reconsiderhis Court'sconstitutionaldoctrines.2In Dickersonv. UnitedStates3the Court declined to do as Chief Justice Taney said he would have done and adheredto Mirandav. Arizona4 withoutsayingwhethera majorityof the Justicesbelieved Mirandato have been correctlydecided as an originalmatter.5
Suppose that some time between the Taney and Rehnquist Courts Congress had adopted a statute purportingto codify Chief JusticeTaney'ssuggestionby providingthat the SupremeCourtshall departfrom its precedentswheneverit believes them to be incorrect.
Copyright? 2000by JohnHarrison.
t Professorof Lawand Classof 1966ResearchProfessor,Universityof Virginia.Thanks to participantsin facultyworkshopsat the law schools of RutgersUniversity(Camden),the Universityof Chicago,and the Universityof Virginia.Deborah Boardman,Scott Horlacher, DemianJackson,SarahErickson,andDanielLovejoyprovidedexcellentresearchassistance.
1.48 U.S. (7 How.) 283 (1849).
2.ChiefJusticeTaneynoted:
I do not, however,objectto the revisionof [a questionhe had believed decidedby earliercases], and am quite willingthat it be regardedhereafteras the law of this court,thatits opinionuponthe constructionof the Constitutionis alwaysopen to discussion when it is supposed to have been founded in error, and that its judicial authorityshouldhereafterdependaltogetheron the force of the reasoningby which it is supported.
Id. at 470 (Taney,C.J.,dissenting).
3.120S. Ct.2326(2000).
4.384U.S. 436 (1966).
5."Whetheror not we wouldagreewithMiranda'sreasoningand its resultingrule,were we addressingthe issue in the firstinstance,the principlesof staredecisisweighheavilyagainst overrulingit now."Dickerson,120 S. Ct. at 2336 (citationsomitted).In dissent,JusticeScalia assertedthat only staredecisiswas proppingup Miranda.The Court,he maintained,could not
say, "'Wereaffirmtodaythatcustodialinterrogationthatis not precededby Mirandawarnings or theirequivalentviolatesthe Constitutionof the United States.'It cannotsay that,becausea majorityof the Courtdoes not believeit."Id. at 2337(Scalia,J.,dissenting).
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Would the Courthave been obliged to decide whetherMirandawas right in the first place, or would the majorityproperlyhave disregardedsuch a statuteas beyond congressionalpower and decidedfor themselveswhatthe rule of staredecisisshouldbe?
The questionof congressionalpower over the normsof staredecisis also arisesin more mundanecontexts.A decade ago, the Federal CourtsStudyCommitteesuggestedthatin orderto deal with conflicts amongthe circuits,the SupremeCourtbe empoweredto refer a case presentinga question as to which a conflicthad arisento an en banc sitting of a court of appeals that had not yet reached the question. According to the proposal, the decision of that court of appeals should set nationwide precedent.6Whether Congress validly could legislate that rule of stare decisis dependsin large part on the extent of its power over precedent.
Despite the practicaland theoreticalinterest of this question,it seems to have receivedverylittle scholarlyattention.7A powerfulrecent study of constitutionalquestionsrelated to precedentdeals with this issue in one sentence:"Moreover,I presumethat the Necessary and ProperClauseallows Congressto commandthe federalcourtsto follow the precedentsestablishedby other courts."8This Article will attemptto fill that gap. I arguethat Congresshas substantialauthority to legislate concerningthe rules of precedentin federal court.My conclusion,put briefly,is that Congressat least may adopt any norm of stare decisis that a court reasonablycould recognize. Congress, therefore,may adopt or modifyrules of precedentin pursuitof accu-
6. See FEDERALCOURTSSTUDY COMM.,REPORTOF THE FEDERALCOURTSSTUDY COMMITTEE126 (1990).The Committeewasappointedby the ChiefJustice,at the instanceof
Congress,to deal withquestionsconcerningthe workloadof the federaljudiciary.Its members were drawnfromthe federalbench,Congress,the executivebranch,andthe bar.Congresshas
not yet enactedlegislationto improvethe federaljudiciary'sabilityto dealwithintercircuitconflicts.
7. ProfessorMichaelStokesPaulsenrecentlybrokethe academicsilenceon this topic in
Abrogating Stare Decisis By Statute:May Congress Remove the Precedential Effects of Roe and
Casey?,109YALEL.J.1535(2000).Despite the seemingsimilarities,ProfessorPaulsen'sarticle
andthisone haverelativelylittle overlap.He does not considerthe possibilitythatthe normsof staredecisisare givento ratherthanmadeby thejudiciary,whereasI startfromthe assumption that they are. Paulsenaddresses"[t]hepropositionthat the judiciaryhas sole and exclusive power to determinethe stare decisisweight to be accordedits own decisions"and rejectsit, concludingthat "'[t]hejudicialPower'of ArticleIII simplydoes not includea plenaryconstitu-
tionalpower,or inviolableinstitutionalprivilege,to makewhatareconcededlyrulesof policy." Id. at 1570.I agreewithProfessorPaulsen'sanswerto the questionhe poses but thinkthatit is
not the mainquestion.
8. Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46
STANL. . REV.817,838(1994)(footnoteomitted).
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racy,economy, stability,and predictabilityin the law-the considerations the courtstraditionallyhave consideredwhen they have formulated such norms.I will not addresswhetherCongresshas a trulyplenarypower that would enable it to adopt any rule it likes concerning the courts'treatmentof theirpriorcases.9
The first questionis whetherthe federal courts'norms of precedent are the kind of legal rule that is susceptibleto alterationby ordinarylegislation.My answeris yes. Most of them are federal common law, or as it was once called,generallaw, and at least one seems to be derivedfrom a statute.That conclusiontakes the argumentonly part of the way. Congressionalactionis valid only if it restson an enumerated constitutionalpower, and Congressmay not, in the form of leg- islation, invade the executive or judicial powers. The relevant enumerated power here comes from the Necessary and Proper Clause, under which Congress may pass laws that carry into execution the other two powers.10Such a congressionalauthorityposes no threatto the separationof powers,or at least no more of a threatthan the necessaryandproperpowerinevitablydoes. Thatthreatmightbe serious were Congressempoweredto legislatewith an eye to determiningthe doctrines accordingto which the courts decide cases. The necessary and proper power, however, authorizeslegislation that is based on systemicconsiderationsthat are divorcedfromparticulardoctrinalresults and hence would not enable Congressto controloutcomesin areas whereit may not legislatethe substantiverule.
In a largely unchartedfield like this one, the first explorer can expect to provide only a basic map. This Essay presents what I believe to be the best way to analyze the question of congressional power over precedentand the answerthatresultsfromthat analysis.I cannot hope to develop the definitivetreatmentof that question,and certainlydo not aspire even to sketch answersto the many further questionsthat ariseif my basicclaimis correct.I do hope, however,to provide a useful traveler'sreportfrom a hithertoundiscoveredcoun-
try.
9. I do not considerwhetherCongresshas any power to legislate concerningrules of precedentappliedby statecourts.
10. SeeU.S. CONSTart. .I, ? 8, cl. 18.
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I. THE NATURE AND STATUS OF THE RULES OF PRECEDENT
Nothing in the nature of the rules of precedentkeeps Congress from legislatingon this subject.Congressmay not alterconstitutional rules,because the Constitutionis hierarchicallysuperiorto statutes." Whenlegislatingwithinthe scope of its enumeratedpowers,however, Congressmay,in general,deal freelywith law from other sourcesbecause federal statutes are the supremelaw of the land.12It may displace state law,for example.
Section I.A begins by arguingthat the normsof stare decisisfall into the category of authoritativelegal rules. Such rules have a source,whetherthat sourcebe the Constitutionor elsewhere.Section I.B maintainsthat the rules of stare decisis appliedby the federalju- diciarydo not derive from the Constitution.Section I.C arguesthat normsof precedentused by the federal courtsmainlyconsist of general law, or federal common law in contemporaryterminology.At least one of those normsappearsto rest on judicialinterpretationsof the statutesthat structurethe federal courts.Pursuantto its granted powers,Congressmay alteror displacethe generallaw, and of course it maychangerulesthatarisefromits statutes.
A.TheNatureof Rulesof Precedent
1.Rulesof Precedentas AuthoritativeLegal Rules.Muchof this Article is concernedwith identifyingthe place of stare decisis norms in the American legal hierarchy. Legal norms are hierarchically arrangedin part because of Article VI of the Constitution,which establishesthe supremacyof federallaw with respectto state law and nonfederallaw generally,includingboth foreign law and general or
common law that is not the work of any identifiable sovereign,
11. The standardcitationfor this proposition,Marburyv. Madison,5 U.S. (1 Cranch)137 (1803),also remindsus thatsome constitutionalrulesmayin a sense be alteredby Congressin thatthey representdefaultsthat the legislatureis empoweredto change.See id. at 179.Article III,for example,sets out the appellatejurisdictionof the SupremeCourtwhilegivingCongress powerto makeexceptionsto it. See U.S. CONSTart. .III. Similarly,the TwentiethAmendment
sets January3rd as the congressionalmeeting date, subject to statutoryalteration.See id. amend.XX, ? 2.
12. See U.S. CONSTart. .VI. The qualifierin the text reflectsthe fact that Congressoften may not alterthe legal consequencesof acts of the othertwo branchesthat changelegal rela-
tionships;thus, it may not undo what the presidentdoes with a pardon.See United Statesv. Klein,80 U.S. (13Wall.)128,141(1872).
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domestic or foreign.13Implicit in the Constitution is its own hierarchicalsuperiorityto other forms of federal law.14In order to know whether Congressmay alter or displace the existing norms of staredecisis,it is necessaryto know where they fit in that ordering,or to put it anotherway, to know wherethey come from.
Asking that question assumes that stare decisis norms have a place in the hierarchy,that they are one of the kinds of law that the federal courtsapplywhen they decide cases. This Essay rests on that claim, and, despite its axiomaticfeel, the premise requiressome defense becausethere is an alternativeway of thinkingaboutprecedent. To see the alternative,it is usefulto considera rule that I will argueis both importantlysimilarto and importantlydifferentfrom the norms of stare decisis. This is the Constitution'srequirementthat any conviction for treason against the United States rest on confession in open courtor the testimonyof two witnessesto the same overt act.15
The two-witnessesrule has three features that are importantfor this Essay. First, it comes straightfrom the Constitution,and hence Congressmay not displaceit. Second,it is higher-orderin that it does not itself provide a rule for conduct, but rathergoverns the application of other rules.In this case, the other rule is the definitionof treason, which also comes from the Constitution.16When the treasonrule is applied in a criminalproceeding,the two-witnessesrule controls. Finally, and relevant here, the two-witnessesrule is authoritativein that the courts must apply it, even when in theirjudgmentit fails to achieve its purpose. A judge in a treason trial may be utterly convinced that the defendant is guilty and that the case has not been trumpedup by the government,but if there are not two witnesses to the same overt act, the defendant goes free. Cases would come out differentlywere the two-witnessesrequirementnot authoritativebut instead a generalizationthat the courts usually followed because it was usually reliable. Were the two-witnessesprinciple of the latter type, a judge would not follow it when convincedthat the defendant was guilty,becauseit would have no independentforce of its own.
13.SeeU.S. CONSTart. .VI.
14.An attemptto identifymore preciselyjust where the Constitutionembodiesthat assumptionis foundin JohnHarrison,TheConstitutionalOriginsandImplicationsof JudicialReview,84 VA.L. REV.333 (1998).
15."No Personshallbe convictedof Treasonunlesson the Testimonyof two Witnessesto the sameovertAct, or on Confessionin open Court."U.S. CONSTart. .III, ? 3.
16."Treasonagainstthe UnitedStates,shallconsistonlyin levyingWaragainstthem,or in adheringto theirEnemies,givingthemAid andComfort."Id.
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Normsof staredecisis,I will assume,have the same kindof independent force as the two-witnessesrule. If they do not, then to say that Americancourtsfollow them is gravelyto impeachtheir adherence to the rule of law. Norms of precedenthave decisive force precisely when the court would have come out the other way had it not been followingprecedent.If principlesof stare decisis are authoritative legal norms,then for a court to follow them is by definitionnot lawless,and the resultis no more peculiarthan whathappenswhen a treason defendant is acquitted under the two-witnesses rule even thoughthe courtbelieves the defendantguilty.But if normsof precedent are based on judicial policy judgments that do not have an authoritativesource, then to follow precedentis to applythe wrong legal rule, not because some higher-orderlegal rule requiresit, but becausethe courtthinksthatdoingso is a good idea.17
Courtsfrequentlydo characterizestaredecisis as a policy,18but I read such statementsto mean two things.First, the rule is not absolute.19Second, the norms are influencedby and reflect policy considerations, as does the common law generally.When judges say they are bound by precedent,I take them to mean that they are following actual rules and not ignoringthe law because they believe that ap-
17. Treatingrulesof precedentas authoritativelegal rulesis one consequenceof a fundamentalassumptionthat I make about the judicialfunction,an assumptionthat leads to a particularaccountof the processoften calledjudiciallegislation.I assumethatthejudicialfunction is to find the factsconcerningparticulardisputesand applyrulesof law to those facts.A court may need to makepolicyjudgmentsin orderto do that,eitherbecausethe applicablenorminstructsit to do so or becausethatnormis unclearin its application,but those policyjudgments are partof the adjudicativeprocessandaremadewithinthe limitsgivenby the normsbeingapplied. As JusticeScaliasays,judgesmake law,but "theymakeit asjudgesmakeit, whichis to say as thoughtheywere 'finding'it."JamesB. BeamDistillingCo.v. Georgia,501U.S. 529,549 (1991) (Scalia,J., concurring)Finding.it meansderivingit fromsome pre-existingnorm,how- ever open-endedthatnormmaybe. Hence,the conceptof judiciallegislationis a metaphor,an accountof a wayin whichthe processof adjudicationresemblesthe processof legislation.Legislatures,by contrast,makelawin the primaryliteralsense of selectinga normon the basissimply of its meritsandprescribingit ex nihilo.
Courtsmakelaw in the mannerI attributeto themany time the applicablenormsare not clear.Some courts,but by no meansall, also make law in the sense of settingprecedents thatwill be treatedas authoritativeby laterdecisionmakersincludinglatercourts.Thisformof judiciallegislation,howeverfamiliarit may be, does not invariablyaccompanythe processof adjudicationFederal. districtcourtsdo not legislatein thissense,nor do courtsin legal systems thatdo not treatcasesas authoritative.
18. See,e.g.,Helveringv. Hallock,309U.S. 106,119(1940)("[S]taredecisisis a principleof policy and not a mechanicalformulaof adherenceto the latest decision,howeverrecent and questionable,when suchadherenceinvolvescollisionwitha priordoctrinemore embracingin its scope,intrinsicallysounder,andverifiedby experience.").
19. Seeid.
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plyingit would be undesirable.20By assumingthat the rules of stare decisis are authoritativelegal rules, this Essay also puts to one side the argumentthat it is illegitimatefor federal courts to follow precedent in applyingfederallaw.
2. Rules of Precedent as Norms Internal to Judicial Decisionmaking.In order to understandthe source of normsof stare decisis,it is first necessaryto be more precise about the way in which courts become obliged to follow precedent. Courtsmay be required to do so because judicial precedent is part of the primarylaw that governs the conduct of partiesin litigation.On the other hand, rules of precedent may operate like rules of evidence, which govern the internaldecisionmakingof the courts.To be sure, privatepeople will often be intensely interested in the courts' operatingprocedures,as Mafiosi are interested in the evidentiary rules of attorney-client privilege.But the two differentkinds of rules have differentsources and differentimplications.
The rules of precedentcould bind everyone, not just the courts, for either of two reasons.First,it could be that cases are literallylaw, the way statutesare law. Despite the implicationof the phrase "case law,"for example,it is quite unlikelythat cases are law in the American constitutionalsystem. If courtsfollow precedentbecause judicial decisionsare law, then they shouldnot follow it in cases involvingthe Constitution, federal statutes, or treaties. As Gary Lawson has pointed out, underthe SupremacyClausewrittenfederal law is superior to everything else, including by implicationjudicial opinions.21 Even if such opinions can be characterizedas laws of the United
20. To say that rulesof precedentare authoritativelegal rules,and hence to some extent opaqueto the reasonsfor havingthem,is of coursenot to say thatthey are completelyopaque. They are not, in fact,completelyopaque,and hence to a substantialdegreedirectlyreflectthe policiesthatunderliethem.Nor are they withoutauthoritybecausecourtsin formulatingthem considerthose policies,just as legislaturesdo when they formulatelegal rules;courtsdo that when they formulatethe law of contracts,but they neverthelessregardcontractlaw as binding on them.Probablythe mostfamousaccountof the natureandlimitsof judiciallegislationcomes
fromJusticeHolmes: do andmustlegislate,but theycan do so onlyinterstitially;they "[J]udges
are confinedfrommolarto molecularmotions.A common-lawjudge couldnot say I thinkthe doctrineof considerationa bit of historicalnonsense and shall not enforce it in my court." SouthernPac. Co. v. Jensen,244 U.S. 205, 221 (1917) (Holmes,J., dissenting).Commonlaw judgesat once followandmakelaw.
21. See Gary Lawson, The Constitutional Case Against Precedent, 17 HARV. J.L. & PUB.
POL'Y23, 24 (1994).The SupremacyClauseprovides:"ThisConstitution,and the Lawsof the United Stateswhichshallbe made in Pursuancethereof;and all Treatiesmade, or whichshall
be made,underthe Authorityof the United States,shallbe the supremeLawof the Land...."
U.S. CONST.art. VI., cl. 2.
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Stateswithinthe meaningof Article VI, they still cannotprevailover the Constitution;when a law of the United States conflictswith the
Constitution,the latterwins.A court,therefore,would have to prefer the Constitutionas the court understandsit to the earlier decision, even thoughthe earlierdecisionhad the force of a law of the United States,andthere wouldbe no staredecisis.In the hierarchyof federal law, at least, talkingabout judicialdecisions as the law is inaccurate shorthand.
Second, it could be that judicialdecisions,althoughnot literally law, are for the world at large conclusive gloss on whatever law is relevant,includingthe Constitution.This thesis is not embarrassedby the Constitution'ssuperiority,because gloss piggy-backson the law being glossed, and an interpretationpiggybackedon the Constitution is the supremeinterpretationof the land. That would be so, not because of any rule specificallyaboutthe way courtsare to operate,but because of a generalprincipleapplicableto all who seek to follow the law.
Whatevermay be the merits of the propositionthat judicialinterpretationsare conclusivegloss for all legal actors,this proposition cannot be the source of the norms of precedentin anythinglike the form with which we are familiar.Assume that judicial decisions do indeed authoritativelyinterpret the law they apply. District courts apply law and decide cases just as much as does the SupremeCourt. So when the United States District Courtfor the EasternDistrictof Virginiadecides an issue undera federalstatute,every other courtin the country,up to and includingthe Supreme Court of the United States,mustfollow its conclusionin later cases. That would be true if judicialconstructionsof the primarylaw themselveshad the statusof primarylaw, but precedentdoes not workthatwayin America.
It may seem that I am being uncharitableto the conclusivegloss hypothesis. Surely it entails some adjustmentfor the internalstructure of the judiciary.One adjustmentis to say that the principleapplies only to decisionsof the highestcourt.If that is so, then the principle cannot accountfor normsof precedentin general,for it cannot tell which district courts, if any, must follow the Fourth Circuit's
cases. Another adjustment,perhapssuperficiallyattractive,is to say that courts produce conclusivegloss only "withintheir jurisdiction," or somethinglike that. A court'sjurisdiction,accordingto this view, includesonly those subjectto its authority,whichin turnincludesprivate people whose cases it can decide and other courtsthat it can reverse. The Fourth Circuit, by this reasoning, produces conclusive
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gloss for people and districtcourts in Maryland,Virginia,West Virginia, North Carolina,and South Carolina,but for no one else. The SupremeCourtconclusivelyglosses federal law because it can decide any case with a federal question, reversingany lower court if necessary.
This refinementstill does not work. It gives nonjudicialactorsa rule they cannotfollow becauseit can subjectthem to inconsistentinterpretationsfromdifferentcourts.An issue of federallaw can end up being litigated in more than one court. Both the Fourth Circuitand the Supreme Court of Virginiamust apply the Constitution'ssearch andseizurerulesbut neithercan reversethe other.22Virginia'shighest court can decide a search and seizure question one way and the federal court of appeals can decide the very same legal question the other way. If the SupremeCourt of the United States denies certiorariin both cases, the VirginiaState Police will be left with inconsistent pieces of supposedlyconclusiveconstitutionalinterpretation.
The problem here is that under the norms of precedent with which we are familiar,the authorityof a judicialdecision depends in parton the appellatestructureof the courts.The United States Court of Appeals for the FourthCircuitusuallymakeslaw for districtcourts within the Fourth Circuit,but never for districtcourts in the Eighth Circuit.The Fourth Circuitin general can reverse districtcourts in North Carolinabut not in Iowa. The Fourth Circuitdoes not make patent law even for district courts in North Carolina,however, because it cannot reverse district courts in North Carolina on patent questions. Cases involvingsuch questions are appealableonly to the Federal Circuit.23This structureof rules about judiciallawmakingis hard to reconcile with the hypothesisthat precedent is authoritative
becausejudicialdecisionsare in generalsourcesof primaryobligation and entitlement.It is, however, quite naturalif one believes that the
norms of precedent are part of the internal operatingproceduresof the courts.If they are, then one would expect those normsto interact with other aspectsof those internaloperations.
22.The SupremeCourthasappellatejurisdictionoverthe statecourts,see 28 U.S.C.? 1257 (1994),butthe federalcourtsof appealsdo not,see 28 U.S.C.?? 1291-96(1994).
23.The allocationof appellatejurisdictionamongthe regionalcourtsof appealsand betweenthemandthe UnitedStatesCourtof Appealsfor the FederalCircuitis foundin 28 U.S.C.
??1294 and 1295.Under the latter,the FederalCircuithas exclusivejurisdiction(with stated
exceptions)over all cases from the federaldistrictcourtswhere "thejurisdictionof that court wasbased,in whole or in part,on section1338of thistitle,"28 U.S.C. ?1295(a)(1)(1994),which
givesthe districtcourtsjurisdictionover "anycivil actionarisingunderany Act of Congressre- latingto patents,"id. ?1338(a).