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Jurisprudence

Personal Precedent at the Supreme Court

Personal precedent is a judge’s presumptive adherence to her own previously expressed views of the law. This Essay shows that personal precedent both does and should play a central role in Supreme Court practice. For example, personal precedent simultaneously underlies and cabins institutional precedent — as vividly illustrated by Dobbs v. Jackson Women’s Health Organization. Further, the Justices’ use of personal precedent is largely inevitable, as well as beneficial in many cases. Still, the Justices should manage or reform their use of personal precedent, including by limiting its creation. Finally, and most fundamentally, personal precedent challenges conventional theories of legality. Though typically excluded from the law, personal precedent may actually be its building block.

Introduction

Many judges and commentators have argued that fidelity to precedent is essential to the judiciary’s “impersonal” character.1×1. See, e.g., Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970) (noting “the necessity of maintaining public faith in the judiciary as a source of impersonal and reasoned judgments”); Randy J. Kozel, Settled Versus Right: A Theory of Precedent 41–42 (2017) (linking stare decisis with “impersonality” in that it “ensures that the law is not reduced to the preferences and personalities of a particular group of [J]ustices assembled at a particular moment in time”). Without stare decisis — that is, adherence to institutional precedent — courts would rule according to whatever their current membership happens to believe about the law. Changes in court personnel or attitudes could therefore yield immediate, sweeping changes in doctrine, and the rule of law would give way to arbitrariness or, even worse, to politics.2×2. See 1 William Blackstone, Commentaries *69–70; Mitchell v. W.T. Grant Co., 416 U.S. 600, 636 (1974) (Stewart, J., dissenting). Judicial individualism is thus cast as the antithesis of precedent, if not of law itself. This thinking played an especially salient role in Planned Parenthood of Southeastern Pennsylvania v. Casey3×3. 505 U.S. 833, 865–66 (1992), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). and still features in debates both on and off the U.S. Supreme Court. Take Dobbs v. Jackson Women’s Health Organization,4×4. 142 S. Ct. 2228 (2022). where defenders of abortion rights insisted that Casey itself not be overruled, lest the Court “be perceived as representing nothing more than the preferences of its current membership.”5×5. Brief for Respondents at 4, Dobbs (No. 19-1392). The Dobbs dissent agreed, lamenting: “Today, the proclivities of individuals rule.”6×6. Dobbs, 142 S. Ct. at 2320 (Breyer, Sotomayor & Kagan, JJ., dissenting); see also Transcript of Oral Argument at 14–15, Dobbs (No. 19-1392), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/19-1392_4h25.pdf [https://perma.cc/3ASJ-H32W] (Justice Sotomayor asking whether the Court could “survive” if it rewarded states that defied precedent “because we have new [J]ustices on the Supreme Court,” id. at 15). Conservative jurists, too, often distinguish between personality and the law.7×7. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2611–12 (2015) (Roberts, C.J., dissenting) (“[F]or those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.”); Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (“It is the proud boast of our democracy that we have ‘a government of laws and not of men.’” (quoting Mass Const. of 1780, pt. 1, art. XXX)). Clearly, judicial impersonality occupies a prominent place in legal culture.

Yet the choice between impersonal law and personal whimsy poses a false dichotomy. What that purported choice overlooks is the possibility of judicial decisionmaking that is both personal and law-like. Call it personal precedent, or judges’ presumptive adherence to their own previously expressed legal views, as contrasted with the institutional precedent issued by court majorities.8×8. See Lawrence Baum, The Supreme Court 134, 156 n.70 (14th ed. 2022) (quoting Richard M. Re, Personal Precedent in Bay Mills, Re’s Judicata (June 4, 2014, 11:00 AM), https://richardresjudicata.wordpress.com/2014/06/04/personal-precedent-in-bay-mills [https://perma.cc/A4KN-XR3G]; Craig S. Lerner & Nelson Lund, Judicial Duty and the Supreme Court’s Cult of Celebrity, 78 Geo. Wash. L. Rev. 1255, 1278 (2010) (critically discussing “personal precedents”). A similar idea sometimes travels under terms like “personal stare decisis,” particularly in quantitative work on judicial behavior. See Saul Brenner & Harold J. Spaeth, Stare Indecisis: The Alteration of Precedent on the Supreme Court, 1946–1992, at 77–85 (1995) (empirically demonstrating that a Justice’s past votes help explain later ones); Reed C. Lawlor, Personal Stare Decisis, 41 S. Cal. L. Rev. 73, 80–84 (1968). For an important qualitative study that critically evaluates “self stare decisis,” see Allison Orr Larsen, Perpetual Dissents, 15 Geo. Mason L. Rev. 447, 469 (2008). “Personal precedent” better captures the diverse, relatively informal, and often subtle ways that a Justice’s past opinions can matter. Though it lacks any formal pedigree, personal precedent has secure foundations. Justices view their own past rulings as evidence of how they should rule today, and they also have strong incentives to remain personally consistent.9×9. See infra section I.B, pp. 829–33. The range of sources potentially giving rise to personal precedent is expansive, including not just a Justice’s separate opinions, but also lower court opinions and even law review articles.10×10. One might add still more types of past opinions, such as statements in litigation briefs. But additional sources generally pose a greater risk of overreading, in part because they may have depended on the speaker’s role at that time. A famous example arose in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), where Justice Jackson disclaimed a view he had taken in his capacity as Attorney General. See William R. Casto, Advising Presidents: Robert Jackson and the Destroyers-for-Bases Deal, 52 Am. J. Legal Hist. 1, 130 (2012) (“[T]he government sought to use as precedent a statement by then–Attorney General Jackson that President Roosevelt had authority to seize plants.”). Justice Jackson remarked in part: “I should not bind present judicial judgment by earlier partisan advocacy.” Youngstown, 343 U.S. at 649 n.17. Here, I exclude opinions expressed as part of an advocacy role from the ambit of personal precedent.

Rarely discussed as a category or afforded sustained attention, personal precedent is a pervasive feature of practice at the Court. At various times, personal precedent helps to shore up, inflect, or defeat institutional precedent. So personal precedents are about as important as institutional ones — and that basic state of affairs is not only inevitable but desirable. On reflection, the rule of law faces greater threats than personal consistency.11×11. But see David Cole, Let the Decision Stand, N.Y. Rev. Books (Nov. 4, 2021), https://www.nybooks.com/articles/2021/11/04/abortion-let-roe-v-wade-stand [https://perma.cc/N9T5-NEEF] (“The only thing that has changed [regarding Casey], in short, is who sits on the Court. And if we are to be ruled by law, not men (or women for that matter), that cannot be a sufficient ground for reversal.”). Even if institutional precedent represents a salutary ideal, personal precedent can still offer a critical backstop on judicial hackery. A jurist’s integrity, in other words, can work as an inoculant against arbitrariness and partisanship, even when institutional precedent does not.

The idea of personal precedent raises deep questions about the nature of law. Of course, everyone recognizes that different judges rule differently — and in ways that are often predictable.12×12. This point is sometimes denied through the assertion of a different claim — namely, that judges are nonpartisan. See, e.g., Mark Sherman, Roberts, Trump Spar in Extraordinary Scrap over Judges, Wash. Times (Nov. 21, 2018), https://www.washingtontimes.com/news/2018/nov/21/roberts-criticizes-trump-for-obama-judge-asylum-co [https://perma.cc/Q557-9TGF] (quoting Chief Justice Roberts) (“We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”). That obvious fact is often viewed with embarrassment or concern, if not as a fundamental challenge to the idea of law itself.13×13. See, e.g., Eric J. Segall, Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges, at xvii (2012) (“The Supreme Court frequently reverses itself on important constitutional law issues for no reason other than the composition of the Court changes . . . call[ing] into serious question the axiom that we are a government of laws not people . . . .”); see also sources cited infra note 95. As Judge Posner once put it, “If changing judges changes law, it is not even clear what law is.”14×14. Richard A. Posner, How Judges Think 1 (2008); see also Segall, supra note 13, at xvii (“‘[I]f changing judges changes law,’ then it is uncertain whether the law controls judges or the other way around.” (quoting Posner, supra, at 1)). Personal precedent offers a distinctive answer. True, judicial personality can reflect political ideology, the inevitable friction in a complex human organization, or objectionable bias. But variations among judges can also represent differences of legal principle. When judges commit themselves to certain ways of deciding future cases, and then go on to do just that, the resulting practice is not just precedential but legal in nature. So we should be neither surprised nor concerned that changes in the Court’s personnel yield changes in the law. To a great extent, the accumulated views of various judges is just what law is.

The argument proceeds in four parts that respectively focus on theory, practice, reforms, and jurisprudence.

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* Joel B. Piassick Research Professor of Law, UVA School of Law. I am grateful to many thoughtful commentators, including Charles Barzun, Will Baude, Kristen Eichensehr, Jeff Fisher, Judge Dan Friedman, Joel Johnson, Marin Levy, Fred Schauer, Dave Pozen, Chris Re, Daniel Rice, Larry Solum, Mark Tushnet, Nina Varsava, and the editors of this journal.