учебный год 2023 / The power of Congress over the rules of precedent

to reacha doctrinalresult,let alone in orderto make a particularlawsuit come out for the plaintiffor defendant,is illicitlyto manipulate the concept of precedent.Thus, when legislatingon the basis of the courts' well-established criteria for rules of precedent, Congress would not be legislating with an eye to results and would not be seekingto take over thejudicialpower.

A. CongressionalPower UndertheNecessaryand ProperClause

Throughouttheir long experience with stare decisis, American judges and commentatorshave explained why rules of stare decisis are a good idea andsuggestedcriteriawithwhichto evaluatethem.In the processthey have providedalmostready-madean explanationof why Congress, pursuantto the Necessary and Proper Clause, may legislatein thisfield. Every argumentin favorof a rule of staredecisis is an argumentthat such a rule would lead to improvedperformance of the judicial function; Congress'snecessary and proper power is preciselythe power to provide those rules that will enable the other two branchesto do theirjobs more effectively.90

90. The presenceof the NecessaryandProperClausemakesit easy to rejectanotherpossible objectionto congressionalactionin this area.The objectionwouldbe thatthe courtshave powerto adoptrulesof precedent,not in the lawmakingcapacitythatcomeswiththeirfunction of decidingcases,but in the lawmakingcapacitythey exercisewhenthey adoptrulesof procedure outsideof the contextof any case. One mightthink,that is, that althoughformulationof staredecisisnormsis indeedan exerciseof genuinelylegislativepower,this is an exceptionto

the vestingof the legislativepowerin Congress,just as the impeachmentprovisionsare an exceptionto the vestingof judicialpowerin the courts.If the courtshave thislittle bit of the legislativepower,Congressmaynot exerciseit, anymorethana courtmaydecidewhetherto convictandremovea civilofficerwhohasbeen impeachedby the Houseof RepresentativesWhat.- everpowerthe courtsmayhaveto adoptgenuinelylegislativerulesof procedurein the absence

of congressionalaction,the positionthatthey maydo so contraryto an act of Congresscannot be sustained.Rules of procedureare necessaryand properto carryinto executionthe judicial power,and the authorityto adoptlawsof thatdescriptionis explicitlyvestedin Congress.That

explicitgrantprevailsover any implicitgrantto the courts,especiallywhere the latterwould constitutean exceptionto the structurecreatedby the Vesting Clauses(This expresiounius

point is centralto ProfessorVan Alstyne'sargument,in his fundamentalarticleon Congress's authorityto carrythe other two powersinto execution,that the scope of "inherent"executive

andjudicialauthorityis limitedby the factthatCongressis givenpowerto do whatis necessary to makethe executiveandjudicialpowersfunctionbest. SeeWilliamVan Alstyne,TheRole of Congressin DeterminingIncidentalPowersof the Presidentand of theFederalCourts:A Com-

menton the HorizontalEffectof "TheSweepingClause,"36 OHIOST.L.J.788,793-94(1975).). Consistentwiththisreasoning,Congresshasbeen adoptingrulesof procedurefor the courtsor

authorizingthem to do so since the JudiciaryAct of 1789.See,e.g., JudiciaryAct of 1789,ch.

XX, ? 17, 1 Stat.73, 83 (authorizingretrials"forreasonsfor whichnew trialshave usuallybeen grantedin the courtsof law"and empoweringthe courts"to make and establishall necessary

rulesfor the orderlyconducting[of] businessin the saidcourts,providedsuchrulesare not re-

pugnantto the laws of the United States").The Courthas recognizedthat Congress'spower trumpsany inherentjudicial authorityto adopt rules of procedure.See Palermov. United

Considerthe basic argumentin favor of some form of horizontal stare decisis. If one believes that the incrementalprocess of lawmaking throughcases is a good way of aggregatingdispersedinformation into a correctanswer,then precedentshould be followed.91If earlier cases are generally right, then it is a waste of effort to require the courts to reinventthe doctrinalwheel every time an issue comes before them, and havinga rule that they should be followed will economize on judicialresources.92And if one believes that stabilityin doctrine is valuable to the legal system, independent of legal accuracy, one may well believe that it is worth sacrificingsome of the latter to obtain the former.93Horizontalstare decisis is a good idea, goes the argument,because rules of precedent will enable the courts to provide generally accurateand stable legal rules while economizing on scaredecisionalresources.94

Rules of stare decisis enable the courts better to achieve their purpose,which means that such rules would carrythe judicialpower into execution.The power to do that is placed in Congress'shandsby

States,360 U.S. 343, 353-54n.ll (1959) ("Thepower of this Courtto prescriberulesof procedure and evidence for the federalcourtsexists only in the absenceof a relevantAct of Con-

gress.").

91. JudgeEasterbrookhas arguedthat precedentdispersesdecisionmakingthroughindividualcases,economizeson information,washesoutjudicialidiosyncrasies,andso increasesthe likelihoodthat precedentwill be correct.See FrankH. Easterbrook,Stabilityand Reliabilityin JudicialDecisions,73 CORNELL. REV.422,423 (1988).

92.See FrederickSchauer,Precedent,39 STAN.L. REV.571, 599 (1987) (arguingthat the rule-likenatureof staredecisissavesjudicialtime).

93.It is a commonplacethat stabilityand predictabilityare centralreasonsfor adherence to precedent."The'interestin stabilityandorderlydevelopmentof the law'thatundergirdsthe doctrineof stare decisis,therefore counsels adherenceto settled precedent."Quill Corp. v.

NorthDakota,504 U.S. 298, 317 (1992) (Stevens,J., concurring)(quotingRunyonv. McCrary, 427 U.S. 160,190-91(1976)) (refusingto overturna previousSupremeCourtdecisionthat held a state could not requirean out-of-statemail-orderhouse withoutrepresentativesor outletsin

the state to collect taxes on goods purchasedin the state). Moreover,some judges appeal to those considerationsin arguingfor moreparticularprinciplesof precedent.Consider,for example, JusticeScalia'sconcurrencein ItelContainersInternationalCorp.v. Huddleston,507U.S. 60 (1993). The case involved the dormantCommerceClause doctrine,which Scalia believes to have been a mistakeas an originalmatterandto whichhe adheresonly for reasonsof staredecisis.Seeid. at 78 (Scalia,J., concurring)He. has announcedhis willingnessto applythe partof the doctrinethat he believes to be clearfor reasonsof staredecisis.See id. at 78-79 (Scalia,J.,

concurring).In Itel, however,he explainedthat he was unwillingto apply multifactoror bal- ancingtests despitethe precedentssupportingthem.See id. (Scalia,J., concurring)Adherence.

to is he becauseit makesfor and butvagueand precedent good, argued, stability predictability,

unpredictabletests cannot provide stabilityand predictabilityand therefore do not deserve strongrespectas precedents.Seeid. (Scalia,J.,concurring).

94. The rule-likenatureof staredecisis,underwhichprecedentis followedeven when, all

thingsconsidered,it wouldnot be followedin the absenceof the rule, makes an independent contributionto judicialeconomy.It relievesthe courtsof the obligationthey otherwisewould

have to makesure,everytime,thatlastyear'swheelwasindeedround.

ability.Whetherthe costs of concentratedpower wouldbe too highis a legitimate subject for debate. Federal Circuitpanels currentlyset nationwideprecedent, and Ninth Circuitpanels set precedent for a populationseveraltimesthat of the United Stateswhen the Constitution was adopted.If a compromisewere desirable,Congresscould direct the courts of appeals to give one another'sdecisions strongbut not absoluteprecedentialforce.

Another familiarcomplexityinvolves the stare decisis rules for courtsthat are authorizedto sit in panels of varyingsize. These days, the rules of precedentreflectthe assumptionthat the authorityto develop doctrine is vested in the court as a whole, and that smaller groupsof judges are agents of the full court.The rule of absolutein- ter-panelstare decisis also may reflect the view that inactionby the full court is equivalentto endorsementof what a panel has done, so that only the full court (or a group large enough to reflect its views more accuratelythanwould a panel) mayoverrulean earlierdecision.

Once again, the currentrules are not the only way to arrange matters. Congress could decide that the en banc mechanismis too unwieldy to justify the gains, if there are any, from having more judges consider a point of law. It could eliminate full-courtsittings just as it has created them. It could also adjustthe interpanelrules, providing that one panel could overrule another if some standard were met, or that panels are bound only by en banc precedent.The latterrule wouldreversethe currentpresumptionthatinactionby the full courtconstitutesendorsementof the priorrule andreplaceit with the presumptionthat the currentfull court will agree with a current panel unless it indicatesotherwise.All of these rules reflect varying resolutionsof the trade-offsamongstability,accuracy,and efficiency. Any reasonable trade-off would be calculatedto enable the courts betterto performtheirfunction.For thatreason,anyrule a courtsensibly could adopt, Congress could adopt pursuantto the necessary andproperpower.101

One more wrinklein the currentregimeillustrateshow standard argumentsfor some rules of precedentare readilytransferredto the necessaryand properpower. While the Federal Circuit'sjurisdiction

101. SeeM'Culloch,17U.S. (4 Wheat.)at421:

But we think the sound constructionof the constitutionmust allow to the national

legislaturethat discretion,withrespectto the meansby whichthe powersit confers are to be carriedinto execution,whichwill enablethatbodyto performthe highduties assignedto it, in the mannermostbeneficialto the people.

is defined in terms of issues about which that court is designed to be expert,the jurisdictionextends to whole cases. It is thus common,for example,for the Federal Circuitto hear appealsin cases that involve both patent and trademarkquestions.But while patent law is within the Federal Circuit'sexpertise as defined by its jurisdiction,trademark law is not. CurrentFederal Circuitpracticeis to decide issues outside its special sphere accordingto the case law of the regional court of appeals in which the districtcourt sits; it thus would apply Sixth Circuittrademarklaw to a case from the Northern District of Ohio, but it would decide patent questions under its own dents."02

This rule rests on the policy in favor of uniformdoctrinewithin the geographiclimits of the regionalcourts of appeals.103It is a relative of the Erie doctrine,which is designed to enhance predictability, in additionto reducingforum shopping.Again, the argumentis that the judicialfunctionwill be more effectivelyperformedif the Federal Circuitdoes not make any more law than it has to. Congress could share that conclusion,or it could decide that the gains from having another look at legal issues outweigh the costs in predictability;that judgmentmay underlie the currentdivision of the courts of appeals into manycircuits.

So far I have discussedpossible modificationsof currentjudgemade normsof staredecisis.It is also possibleto produceexamplesof rules that the courtshave not adoptedbut that Congresscould. Here too, the mode of reasoningis the mode appropriateto the Necessary and Proper Clause, because the argumentin favor of a stare decisis norm is that it would enhance the operation of the judicial power. The proposal of the Federal Courts Study Committee mentioned above provides an example.10Under that rule, when a conflict has arisen among the circuits,the Supreme Court would transfera case presentingthe issue to a court of appealsthat had not yet addressed it, whichwould decide the case en banc and set precedentfor the entire federal system, subjectto the Court'sreview. That rule of prece-

102.See, e.g., Registration Control Sys. v. Compusystems, Inc., 922 F.2d 805, 807 (Fed. Cir.

1990). This practice has produced its own system of epicycles, including, for example, the question whether the Federal Circuit will apply its own law or that of the regional courts of appeals on "mixed" questions of patent and non-patent law. The Federal Circuit, sitting en banc, has recently held that it will follow its own course in determining whether patent law conflicts with non-patent federal law or state law. See Midwest Indus., Inc. v. Karavan Trailers, Inc., 175 F. 3d 1356, 1358-59 (Fed. Cir. 1999) (en banc).

103.See Midwest Indus., 175 F.3d at 1359.

104.See supra note 6 and accompanying text.

the most provocative recent example is Casey, in which the Court maintainedthat the case for followingprecedentis strongerwhen the

earlier decision has been the subject of considerablecontroversy."06 Congresscould eliminatethat criterion,judgingfor example that the

gainsit promisesfor publicconfidencein the judiciaryare outweighed by the distortingeffect such a rule would have on incentivesfor political activity. In similar fashion, it could reject the distinction between constitutionaland statutoryprecedents that some cases have endorsed.107

B. CongressionalPowerandJudicialPower

As suggested above, familiar reasoning concerning rules of precedentalso providesan answerto the centralobjectionto my thesis: that a power over precedent would enable the legislatureso to control the courts' decisions as to usurp the judicial power."08That objection has two variants,the first of which can be put aside fairly easily. Accordingto this first variant,for Congressto give the courts rules of precedentwould be for it to interferewith the judiciary'sreasoning process.Deciding the weight that an earliercase deservesis a questiononly a courtcan answer.

In a sense that is correct, but not in a sense that represents a genuine difficultyhere. True enough, deciding on the weight to be given a priorcase is an exercise of the judicialfunctioninsofaras that decision reflects the applicationof a rule. The rule could be, for ex- ample,thatwell-establishedprecedentsare strongerthanrecent ones.

"unsoundin principleandunworkablein practice").

106.See PlannedParenthoodof SoutheasternPa.v. Casey,505 U.S. 833,867 (1992)("Soto overruleunderfire in the absenceof the mostcompellingreasonto reexaminea watersheddecisionwouldsubvertthe Court'slegitimacybeyondanyseriousquestion."(citationomitted)).

107.See,e.g.,Paynev. Tennessee,501 U.S. 808,828 (1991)("Staredecisisis not an inexorable command;ratherit 'is a principleof policyandnot a mechanicalformulaof adherenceto the latestdecision.'Thisis particularlytruein constitutionalcases,becausein suchcases'correction

throughlegislativeactionis practicallyimpossible."'(citationsomitted)).

108. The contemporarycase most naturallyassociatedwith this difficultyis Plautv. Spend-

thriftFarm,514U.S. 211 (1995),whichheld thatCongresscouldnot reopendamagesjudgments enteredby the federalcourts.See id. at 240. Understoodmore broadly,Plautis an instanceof the principlethat Congressmaynot exercisethe judicialpoweror interferewiththe courts'exercise thereof. Other cases and formulationsof the principlealso may come to mind. City of Boeme v. Flores,521U.S. 507 (1997),for example,couldseem relevantbecauseit can be taken to standfor the propositionthatthe courtsandnot Congresshave the lastwordon the meaning of the Constitution.See id. at 536. I will not attemptto canvassall the possiblewaysof putting the objection,however,becauseno case is actuallyon point and all the variousformulations have the samecentralidea:thata powerover precedentwouldgive Congresstoo muchcontrol overdoctrine.

If that were the rule, to determine whether a case was wellestablishedor recent would be an exercise of the adjudicativefunction, and for a legislature to purport to make that determination would be very problematic.But there is also a way in which determiningthe weight to be accordeda precedentis a legislativeand not an adjudicative function. Adopting the rule that well-established precedentsare entitledto more respectthanrecent ones is legislative, as would be rejecting that rule and instead deciding that recent precedentsshould have more force than old and possibly outmoded cases. Of course, to adopt a rule is to producethe resultsentailed in its applications,but that does not make everylegislaturea courtevery time it chooses one normover another.

More troublesome is the possibilitythat Congresscould shape rules of precedentso as to controldoctrinein areaswhere it may not legislate, especiallythose governedby the Constitution.Imagine,for example, that in 1952 Congress had decided to maintain sectional tranquilityby providingthat the dictumin Plessy concerningschool segregationwas not to be questioned.

To say that a power maybe misused,however,is by no meansto say that it does not exist. All power is subjectto misuse,and virtually any governmentfunctioncan be carriedout irresponsiblyIn. orderto show that the separationof judicial and legislative power rules out congressionallegislationwith regardto normsof precedent,it would be necessaryto show eitherthatthere are no unproblematicexamples of such legislation or that congressionalpower is so fraught with abuse as to be inadmissible.Neither is the case. On the first point, stare decisis as we know it consists largelyof examples of rules that reflect systemic considerationsunrelated to particulardoctrinalresults. The basic principleitself is substantivelyneutralas to possible answersbecauseit simplyembracesthe judicialanswerthatcamefirst in time. To legislatein the interestsof stabilityis no more an attempt to controlthe substantiveshapeof the law thanis the judicialpractice of following precedent that the judges now believe to have been incorrect."09To adopt a rule about whether and how much to follow earliercases is not to decide on particularoutcomes.10

109. Indeed,adherenceto precedentis routinelyendorsedon the groundsthatit enhances judicialneutrality,whichis to saydecisionon the basisof lawratherthanresult.See,e.g.,Payne,

501 U.S. at 827 (explainingthatadherenceto precedentpromotesevenhandeddevelopmentof

legal id. at 848-49(statingthatadherenceto is fundamentalto the ruleof principles); precedent

law) (Marshall,J.,dissenting).

110. I assumethat the difficultyat issue wouldarisewere Congressto seek deliberatelyto