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 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 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 and still features in debates both on and off the U.S. Supreme Court. Take Dobbs v. Jackson Women’s Health Organization,4 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 The Dobbs dissent agreed, lamenting: “Today, the proclivities of individuals rule.”6 Conservative jurists, too, often distinguish between personality and the law.7 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 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 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
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 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 That obvious fact is often viewed with embarrassment or concern, if not as a fundamental challenge to the idea of law itself.13 As Judge Posner once put it, “If changing judges changes law, it is not even clear what law is.”14 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.