When the Supreme Court overrules or declines to overrule a past decision, it typically invokes precedent about precedent.1 These are prior cases that establish a framework for when stare decisis counsels for or against overruling a decision.2 “Perhaps the most famous”3 of these is Planned Parenthood of Southeastern Pennsylvania v. Casey.4 Casey and its stare decisis factors have long been the dominant framework endorsed by the Court in constitutional cases.5 And even in cases in which the Court did not cite Casey, it employed a framework that mirrored the one Casey developed.6 But Casey is not alone as a precedent about stare decisis. Precedent about precedent exists to help judges (and litigants) deal with a host of stare decisis questions.7 This Note deals with precedent about precedent as a conceptual whole, but Casey and Dobbs v. Jackson Women’s Health Organization8 make for ideal examples of the phenomenon on which this Note focuses.
Without a doubt, Dobbs overruled aspects of Casey’s framework even as it employed some of the factors that Casey laid out.9 Dobbs’s treatment of Casey as precedent about precedent has drawn significant criticism, including in the pages of this law review.10 These critics argue that the Court’s stare decisis analysis in Dobbs was misguided because it departed from Casey’s conception of stare decisis either in theory or in application.11 But if Casey’s conception of stare decisis was incorrect from the start, then the Dobbs majority would have erred by employing that same conception of stare decisis. The fact that Dobbs refused to invoke Casey’s understanding of how stare decisis worked is not solely a function of the Court’s rightward shift — it is a function of precedent about precedent.
This Note argues that precedent about precedent is unique within the system of stare decisis because precedent about precedent is not entitled to the stare decisis weight to which it, as precedent about precedent, would entitle all other cases. Part I further sketches out the notion of precedent about precedent and employs Dobbs and Casey as examples of precedent about precedent in practice. Part II then argues that precedent about precedent’s unique status poses a paradox. Finally, Part III explores some of the problems that develop within any theory of precedent about precedent because of the implications that flow from its paradoxical nature.
I. Precedent About Precedent
This Part defines precedent about precedent — what it is, and what it isn’t. It then uses Dobbs and Casey to explore the idea of overruling precedent about precedent.
A. The Concept of Precedent About Precedent
“Precedent about precedent” or “precedent on precedent” is a “prior opinion[] identifying whether and how [a court] will regard its past precedents.”12 In other words, precedent about precedent is what establishes the framework through which a court evaluates horizontal precedent. Precedent about precedent tells future courts what factors to consider and how to weigh them as part of their stare decisis analysis.13 So, questions such as, “What counts as a reliance interest?”14 or even, “Should the Court consider reliance interests?”15 are all questions for which precedent about precedent provides an answer. Additionally, precedent about precedent needs to be one of two things: (1) an explicit holding about how to treat other precedents; or (2) otherwise controlling,16 either because some other precedent makes it so17 or because the Court treats it as such.18 Therefore, the individual views of Justices do not create precedent about precedent for the Court, but they can affect how precedent about precedent applies in practice.19 This idea of precedent about precedent is not foreign to the Court or scholarship surrounding stare decisis. For example, then-Judge Kavanaugh invoked the concept when discussing Casey at his confirmation hearing,20 and literature evaluating the Roberts Court’s approach to stare decisis relies on the concept of precedent about precedent.21
There are concepts to which this Note does not use the term “precedent about precedent” to refer. Importantly, precedent about precedent as this Note uses it does not implicate vertical precedent. To be sure, there is precedent about vertical precedent — namely, that it binds lower courts.22 But as a general matter, each court that employs some form of horizontal precedent can choose its stare decisis framework for itself.23 Whether the Supreme Court could employ its supervisory power to impose a binding, vertical precedent about horizontal precedent is another question.24 For now, it is enough to acknowledge the Court has never attempted to do so.25 The precedent about precedent this Note is concerned with, therefore, is the horizontal precedent that describes how a court should evaluate its own precedents.
Finally, it is important to mention that precedent about precedent can change over time. This Note is premised on the idea that the Court can and does overrule or change aspects of its precedent about precedent.26 That matters because it means sometimes the Court needs to employ some sort of framework to decide when to modify its precedent about precedent. And when that modification happens, one central question is: From where does the framework for reevaluating a precedent about precedent come? In other words, does the Court use the existing framework that it is supposed to be reconsidering, or does it employ what it believes to be a new, better framework?27 Answering these questions is key to understanding precedent about precedent more deeply.
B. Casey and Dobbs: A Case Study
Casey and Dobbs provide excellent examples of precedent about precedent in practice and the overruling of precedent about precedent. As a result, they can help one understand the theory behind precedent about precedent and how the Court evaluates precedent about precedent in practice. Of course, both Casey and Dobbs were and remain polarizing decisions,28 but it is in the abortion context that the contours of precedent about precedent become the sharpest.29 So, putting aside the merits of those decisions for a moment, it is possible to explore how precedent about precedent functions in practice.
Start with what made Casey the Court’s central “paean to stare decisis” for so many years.30 Casey not only synthesized the prior factors the Court had employed into one, (relatively) clear stare decisis framework,31 but also painstakingly detailed how to apply those factors.32 In doing so, Casey became an authority moving forward for how the Court would think about stare decisis.33 Whether or not Casey’s framework was actually binding on future decisions is another question,34 but what matters is that, for a time, when the Court was faced with overruling a prior case, it would dutifully wheel out Casey’s framework and, at a minimum, purport to apply it.35 Thus, Casey was “precedent on precedent.”36
Enter Dobbs. The Dobbs majority rejected Casey’s framework in two meaningful respects. First, it overruled Casey’s approach to reliance interests by rejecting Casey’s intangible reliance interests analysis.37 Second, the majority discarded the weight Casey gave to the impact of overruling Roe on the Court’s legitimacy by focusing on Roe’s and Casey’s political divisiveness.38 In doing so, however, the Court did not use Casey’s analysis to determine whether Casey’s analysis should be overruled. If the Court had done so, Casey would have survived because overruling Casey’s understanding of intangible reliance interests would have, for example, itself undermined intangible reliance interests.39 Instead, Dobbs employed what it viewed as the proper stare decisis framework and evaluated Casey in light of that conception of stare decisis.40 In overruling Casey as a precedent about precedent, Dobbs did not treat Casey’s precedent about precedent as controlling.
In sum, precedent about precedent tells future Courts how to evaluate precedent — the weight to give to reliance interests, how wrong the prior decision needs to be to overrule it, and so forth. But sometimes the Court overrules a prior precedent about precedent, as it did in Dobbs. In deciding whether to overrule the Casey framework, the Court did not employ the Casey framework. That decision is the central focus of this Note, which now turns to the paradox that necessitates that decision.
II. The Paradox
As the discussion of Dobbs and Casey suggests, precedent about precedent faces a unique wrinkle when it comes to stare decisis. This Part offers a theoretical explanation for this unique status by suggesting that precedent about precedent is paradoxical in nature. It then explores this paradox in practice by returning to Dobbs and some of the criticisms of Dobbs’s treatment of Casey as a precedent about precedent.
A. Theory
The paradox of precedent about precedent is this: When the Court overrules a precedent about precedent, it cannot employ that precedent about precedent to evaluate the original precedent itself. As a result, precedent about precedent entitles all other cases to a certain amount of stare decisis weight before they are overruled, but the same stare decisis weight does not attach to the precedent about precedent when it faces its own repudiation. Unlike all other cases, precedent about precedent does not operate under the very rules the precedent establishes.
A real-world example at the extreme demonstrates the underlying theory of why a precedent about precedent cannot be evaluated on its own terms. For a roughly sixty-eight year stretch, the House of Lords in the United Kingdom considered stare decisis absolute41 until it overruled that practice.42 In other words, the House of Lords’ precedent about precedent did not permit it to ever overrule a precedent,43 but it nevertheless did so without feeling constrained by that precedent about precedent.44 If the Supreme Court were to adopt that approach and then later decide that such an approach was misguided, surely it could overrule its absolutist position, just as the House of Lords did, even though the absolutist approach to stare decisis would suggest that it could never itself be overruled. An alternative view would mean that the House of Lords acted illegitimately when it overruled its own absolutist meta-precedent, but there are a couple of problems with that view. First, such a position would raise serious questions about the ability of one majority to truly bind a future majority to a particular framework.45 A judge-made rule that could not be amended is like a statute that purports to be unamendable by Congress. So long as the source of the law is the same, there is no reason why a subsequent rule cannot replace a prior one.46 Second, such a position would present opportunities for gamesmanship.47 Therefore, the experience of the House of Lords demonstrates why it would be theoretically untenable to suggest that a precedent about precedent applies to itself.
A simplified, numerical example helps illustrate this point for nonabsolute rules of meta-precedent. Imagine that the Court’s existing framework for stare decisis established in Case A required the majority to be at least 90% certain that a prior case was wrongly decided before overruling that case.48 Now imagine that in Case B the Court has come to believe that its 90% bar was too high. Instead, the Court would like to use Case B as a vehicle to establish a new stare decisis framework. Under Case B’s proposed rule, the Court could overrule a case when it is 75% certain the prior case was wrongly decided. Obviously, doing so would require overruling Case A as precedent about precedent. But here’s the catch: Can the Court overrule Case A if it is only 80% sure Case A was wrongly decided? The answer should be “yes” for the same reason that the House of Lords could overrule its absolutist stare decisis position. If the House of Lords could overrule an absolutist rule without employing the absolutist rule, then Case B can overrule Case A without employing Case A’s rule. Therefore, the old Case A’s 90% framework will be subjected to Case B’s new 75% framework instead of Case A’s own framework. If Case B were merely overruling a run-of-the-mill merits decision in Case C, Case B would be bound by the normal rules of stare decisis to apply Case A’s 90% framework. But because Case B is overruling a precedent about precedent, Case A does not receive the same stare decisis consideration that Case C would. That makes Case A, as a precedent about precedent, unique among other cases when it comes to stare decisis.
Therein lies the heart of the paradox. A precedent about precedent is not entitled to the same stare decisis weight as all other precedent despite establishing how much stare decisis weight other precedents are to be given. Requiring the Court to employ the stare decisis framework that it views as incorrect to evaluate whether stare decisis compels it to retain that very framework would be both illogical and impractical. It would mean that one Court could set the rules of precedent about precedent for all time, a position that eschews traditional approaches to stare decisis. It would also mean that a Court could create special rules for favored cases, undermining the evenhanded application of stare decisis. Therefore, when asking whether Case B must use Case A’s stare decisis framework to overrule Case A’s framework, the answer is “no.” It is this inability to operate within the very framework that it establishes and that all other cases operate within that makes precedent about precedent unique.
B. Practice
In practice, this means that when the Court overrules aspects of its precedent about precedent, such as Casey, it cannot and will not use that precedent about precedent’s framework. The theory behind the paradox of precedent about precedent means that a precedent about precedent should not be used to evaluate itself. This plays out in numerous cases involving revisions to precedent about precedent. Dobbs is a prime example,49 but there are others. Casey itself, in synthesizing a new stare decisis framework, did not purport to apply any particular prior framework.50 The Ramos v. Louisiana51 plurality, in attempting to overrule part of the Marks v. United States52 rule, did not first apply Marks; instead, it claimed Marks did not cover situations like the one in Ramos.53
Therefore, in some respects, the critics of the Dobbs majority have a point. Dobbs discarded or modified aspects of Casey’s stare decisis analysis without analyzing the Casey framework through any sort of stare decisis lens.54 But it is important to differentiate two different lines of criticism surrounding Dobbs’s treatment of Casey. First, there is a “merits” claim. This is simply the claim that as a matter of stare decisis — regardless of the framework — Casey should not have been overruled.55 Fair enough. It is the second line of criticism that matters for this Note’s purposes. This is the “meta-precedent” claim, meaning that it involves precedent about precedent. This criticism argues that Dobbs should have upheld Casey based on Casey’s own stare decisis framework.56
The paradox of precedent about precedent demonstrates that this claim cannot be true. For one, it would create a theoretical mess. For another, practice surrounding precedent about precedent confirms that when Justices overrule (or attempt to modify) aspects of precedent about precedent, they do not apply the original precedent about precedent.57 In fairness, the lines often blur between the merits and meta-precedent arguments.58 When someone thinks that the original precedent about precedent was correct, he or she is likely to believe that a new stare decisis framework should not be applied because the old framework was correct on the merits.59 Again, nothing about the paradox of precedent about precedent suggests that the merits claim is illegitimate. When that claim becomes blurred with a meta-precedent claim, however, the criticism’s footing becomes shakier. In other words, arguments that Dobbs should not have overruled Casey based on Dobbs’s own conception of stare decisis60 are fair game. So too are arguments that Dobbs misconceived vital aspects of stare decisis.61 What the nature of precedent about precedent prevents is arguments that Dobbs erred by not applying Casey’s formulation of stare decisis.
In short then, precedent about precedent’s unique paradoxical nature prevents it from applying to itself. What exists in theory plays itself out in practice, as Dobbs (and Ramos) demonstrate. But this paradox is only the beginning. The strange nature of precedent about precedent gives rise to other theoretical problems — problems that the Court has not reasoned through.
III. The Problems
This paradox that precedent about precedent creates presents a host of problems. This Part examines those problems and offers a preliminary account of how judges and scholars ought to think about them. It also shines light on an area of law the Court too often neglects to theorize adequately.
A. The Problem of Overruling Precedent About Precedent
The first problem that this theory of precedent about precedent presents is what to do about overruling precedent about precedent. Previously, this Note has focused on the theory behind overruling a precedent about precedent in order to lower the bar for overruling cases. But the problem of overruling precedent about precedent exists in both directions — making it easier to overrule precedent and making it harder.
1. Lowering the Bar for Overruling. — The first problem with overruling precedent about precedent occurs whenever the Court makes it easier to overrule precedent — in other words, when the Court lowers the bar for overruling prior cases by modifying the prior precedent about precedent. For most cases, this is relatively straightforward. When the Court weakens or overrules a real-world stare decisis factor, it employs the new calculus to overrule the prior precedent about precedent.62 This is the key insight of recognizing that precedent about precedent presents a paradox.
Dobbs is once again a prime example of this. In rejecting Casey’s judicial-legitimacy justification for retaining Roe,63 the Court focused on Roe’s and Casey’s disruption of democratic deliberation around the abortion question.64 It did not employ Casey’s conception of stare decisis. Many of the factors it invoked were the same,65 but Dobbs used its own stare decisis calculus to decide whether Casey’s stare decisis analysis was correct.66 To the extent that one thinks this approach to stare decisis in the precedent about precedent context is problematic, it is largely inescapable. An alternative solution is simply not feasible for logical and practical reasons.67
There is a larger problem looming, however. So far, this Note has assumed that Case A (requiring 90% certainty) meets Case B’s criteria for overruling (requiring 75%). But what happens if Case A comes up short? This would occur if the Court was only 70% certain that Case A was wrong. Is Case A as a precedent about precedent entitled to any stare decisis respect? In these instances, precedent about precedent presents the problem that this Note has only so far hinted at — can one Court bind a future Court methodologically?68
In practice, the Court seems not to bother with stare decisis when it modifies precedent about precedent. For example, rather than determine whether Casey’s conception of reliance was workable, had itself engendered reliance interests, and so forth, the Dobbs Court made a merits judgment that Casey was wrong about reliance, and then it overruled Casey on that point.69 This suggests that stare decisis for precedent about precedent is empty (or so extremely merits sensitive that it overrides any other considerations).70 In other words, the Court makes a merits decision about what the correct rule of precedent is, and then it implements that rule regardless of whether the old precedent about precedent meets the new criteria for overruling. So if the Court is only 70% sure Case A was wrong, it still overrules Case A and adopts a 75% threshold in Case B. The Court does not in practice apply the new stare decisis framework to the old one.
This is both a problem and a potential solution. On the one hand, it undermines the idea of precedent about precedent as binding in practice. And if precedent about precedent isn’t binding, why do judicial nominees profess fidelity to it,71 and what good is it? So that is a problem. On the other hand, if precedent about precedent does not get any stare decisis effect, then there is a way to explain the Court’s practice of seemingly ignoring stare decisis when it comes to precedent about precedent: The Court does not bother going through the stare decisis factors when overruling precedent about precedent because it is a purely merits-motivated decision.
A couple of implications flow from this position. First, the Court and judicial nominees can still claim that they are bound by precedent about precedent in almost all cases.72 Overruling precedent about precedent is a special case where precedent about precedent does not apply. This understanding of precedent about precedent comports with the theoretical point from earlier that precedent about precedent does not apply to itself.73 It also allows one to retain the view that precedent about precedent is constraining to some degree.74 It is just not constraining when it comes to itself — hence, the paradox. Recognizing that overruling precedent about precedent is a purely merits-based decision also solves the problem of what to do when Case B wants to overrule Case A as precedent about precedent, but Case A does not meet Case B’s criteria for overruling. Because the decision to overrule Case A as precedent about precedent is a pure merits question, it does not matter if Case A satisfies Case B’s framework.75 Finally, from a positivist perspective, it seems to provide a descriptively correct account of the law. If one accepts the view that the Court can create binding precedent about precedent, understanding the paradox of precedent about precedent in this way helps explain behaviors in some of the Court’s most recent cases involving precedent about precedent.76
To be sure, viewing precedent about precedent as binding except when its own framework is at issue is not the only possible solution to this problem. Another solution is to reject the idea that one Court can methodologically bind future Courts. This would do away with precedent about precedent as a concept. On the one hand, this might be a compelling solution because there are certainly some situations in which it seems the Court cannot methodologically bind itself.77 However, adopting this view runs into a couple of problems. First, it would not explain why the Court talks about precedent about precedent in the way it does. If precedent about precedent is not binding in cases where the precedent itself is at issue, why does the Court repeatedly suggest that precedent about precedent matters?78 Second, there are instances in which the Court does adopt binding methodologies.79 Perhaps this is incorrect,80 or precedent about precedent can be differentiated from these situations,81 but at the very least, discarding the idea of precedent about precedent is a drastic step.
A final, related solution would be to view precedent about precedent as permissive but not mandatory in all cases. This would make precedent about precedent a special case of the view that Professor Richard Re has outlined.82 Following Re’s approach, the Court could invoke precedent about precedent to “establish[] the lawfulness of a particular course of action without requiring any additional inquiry,” but “[i]t would remain fully open to the judge to deviate from the precedent, provided that doing so is otherwise lawful.”83 In other words, it is lawful for the Court to retain precedent about precedent because it is precedent, but it is also lawful for the Court to choose to ignore or revoke the permission that precedent about precedent bestows.84 On the descriptive side, the precedent about precedent permission model avoids reading too much into the Court’s statements that precedent about precedent has some binding force; while the Court may proclaim that precedent about precedent is binding, “the Justices may help themselves to a rhetoric of bindingness while engaging in a practice that is best described in terms of permissions.”85 Thus, the permission model describes the Court’s practices in a “do-as-I-do,” not in a “do-as-I-say,” manner, which is a less drastic step than discarding the concept of precedent about precedent in toto, but it still requires one to discount significantly the purported constraint of precedent about precedent.
Thus, whenever the Court makes it easier to overrule precedent about precedent, there is a chance that a theoretical problem will present itself. However, there are a couple of ways to reconceptualize precedent about precedent in order to get around this problem, depending on one’s view of whether one majority can methodologically bind a future majority. Each potential solution has its merits and drawbacks. The point here is not to definitively defend one solution but to demonstrate that the paradoxical nature of precedent about precedent requires more theorization about precedent and its constraining power — theorization at which the Justices have only waved their hands.86
2. Raising the Bar for Overruling. — When the Court raises the bar for overruling precedent, it triggers the second problem with overruling precedent about precedent. This problem is more complex than the problem that arises from lowering the bar for overruling precedent, but it again serves the point of highlighting the paradoxical nature of precedent about precedent. The issue imagined here is reversal of the prior examples; instead of establishing a 75% threshold for overruling a case (call that Case X), the Court wants to establish a 90% certainty requirement (call that Case Y). If the Court is 95% confident that Case X is wrong as a precedent about precedent, then there is no problem at all because the Court’s decision satisfies both Case X’s and Case Y’s requirements. The difficulty arises when the Court is only 80% sure Case X is wrong. In that instance, Case X should be overruled on its own terms, but Case Y, which is supposed to be the new stare decisis framework, suggests that overruling would be inappropriate.
The Marks rule is instructive. Imagine if a plurality of the Court were to adopt the view that Marks should be abandoned so that only a majority opinion created binding precedent,87 and a fifth Justice whose vote was necessary to create a judgment in the case adopted the position that Marks was never actually binding law because it was an interpretive methodology for precedents like Auer88 deference is for regulations.89 Under Marks, the plurality position would be binding as the “narrowest grounds” of agreement.90 But the plurality position would be that Marks is overruled and only a true majority position is binding. In other words, following Marks’s own rule, Marks would be overruled, but following the precedent that the Marks rule purports to establish via the plurality opinion, Marks would not be overruled.
Granted, such a situation would probably be a rarity. Ramos, however, came close to exemplifying this problem. There, a plurality claimed that Apodaca v. Oregon91 provided no binding precedent under the Marks rule because Justice Powell’s separate opinion, which was necessary to create a judgment of the Court, would have overruled prior precedent92 — a position which the other eight Justices in Apodaca rejected.93 Therefore, the Ramos plurality would have adopted a rule of precedent about precedent that the Marks rule does not create binding precedent when the controlling opinion “repudiate[s] this Court’s repeated pre-existing teachings on” an area of law.94 In other words, the plurality would have modified the Marks rule to ensure “a single Justice writing only for himself” does not have “the authority to bind this Court to propositions it has already rejected.”95 To be sure, the plurality did not view this as a partial repudiation of the Marks rule — but the other six Justices did.96 So, taking the plurality’s approach as an attempt to overrule Marks in part,97 it is interesting that Justice Gorsuch did not acknowledge the awkwardness of his position.98 The plurality’s position was that a mere plurality could not — consistent with Marks — overrule settled precedent. Yet, the lead opinion in Ramos was a plurality attempting to overrule what the other Justices took as a settled application of Marks.99 Assume for a minute that Justice Gorsuch’s position was the narrowest one in Ramos concerning Marks.100 Under Marks, the view that a plurality opinion cannot overrule prior precedent therefore would be controlling.101 But under the Ramos plurality’s view that the Marks rule now says is controlling, a plurality opinion that overrules prior precedent cannot be controlling.102 By attempting to raise the bar for overruling precedent, the Ramos plurality has ensured that its own rule is invalid.103 The point is that the nature of precedent about precedent creates this paradoxical situation that makes one’s head hurt if thought about for too long. As a result, there needs to be a way out of this problem.
Fortunately, the solutions from before can help. If the decision to raise the bar for overruling — just like the decision to lower the bar — is truly a merits question without any consideration for stare decisis, then it does not matter if Case X does not meet Case Y’s new criteria for overruling. Case Y can simply replace Case X’s framework based on a merits judgment that Case X was wrong. And if stare decisis does not attach to precedent about precedent, then it is possible to avoid the Marks/Ramos-plurality problem. It does not matter whether the Ramos plurality’s view of Marks is precedential or not because the Court in a future case can always resolve the question anew based on its own view of the merits.104 The same implication holds if the Court cannot methodologically bind itself; neither Marks nor the Ramos plurality’s revision of Marks affects future Courts from a precedent about precedent perspective. The Court is entitled to determine whether a prior fractured case is entitled to stare decisis based on its own views. It is not bound by Marks or any other rule. Finally, if precedent about precedent is permissive, then the Ramos plurality could have lawfully followed Marks, but it did not have to do so.105 Likewise, in the future, the Court can continue to treat Marks as permissive precedent about precedent,106 or it can reevaluate its rules for fractured decisions.107
At bottom, if precedent about precedent does not apply to itself and overruling it does not trigger stare decisis considerations, judges and scholars can avoid some of the problems that the paradox of precedent about precedent seems to present. This is just one possible way of conceptualizing the unique status of precedent about precedent, but it has the benefit of making meta-precedent still a worthwhile inquiry for all other cases. The other conceptualizations — rejecting methodological binding and viewing precedent as permission — are also viable. Right now, however, the Court is not thinking hard about the status of precedent about precedent or its implications.
B. The Problem of Individual Approaches to Precedent About Precedent
The paradox also affects individual Justices’ approaches to precedent about precedent. Yet this phenomenon too goes unrealized in the Court’s current writings on precedent. Earlier, precedent about precedent was defined as, at a minimum, something a majority of the Court viewed as binding.108 That means that idiosyncratic views, such as Justice Thomas’s, do not count as precedent about precedent no matter how many times they are reiterated in concurrences. But what happens when members of the Court do not follow the Court’s precedent about precedent?109 Or worse yet, what if a panel on the court of appeals believes that the circuit’s horizontal precedent rules, which were adopted as Circuit Rules, are unconstitutional?110 Precedent about precedent does not really matter if individual Justices or judges do not follow it.111 This section discusses the problems that individualized approaches to stare decisis create.
The preeminent example of the problem of an individual rejection of precedent about precedent is Justice Thomas’s approach in Gamble v. United States.112 There, Justice Thomas outlined a different stare decisis approach that focused on the nature of the prior decision’s error.113 Justice Thomas argued that the Court can adhere to incorrect prior decisions so long as they are not “demonstrably erroneous,” but that judges are not bound by wrongly decided precedent regardless of the precedent’s workability or reliance interests.114 Justice Thomas’s view, then, looks very similar to the precedent as permission view (although with mandatory overruling of demonstrably erroneous precedents).115 His view certainly does not follow the Court’s precedents about stare decisis.116
Voting based on a different stare decisis analysis weakens precedent about precedent overall because even if precedent about precedent is not binding on itself, the Court’s rhetoric treats it as binding when applied to other cases.117 But if one or more Justices take a different approach than the majority does about the proper standard for stare decisis, the bindingness of precedent about precedent is watered down. Imagine if the Court’s precedent about precedent required a case to meet factors A, B, and C to warrant overruling. In a particular case, four Justices believe a prior case has met all three factors, four Justices believe the prior case has met none, and the final Justice believes the case has met factor A. Should the prior case be overruled? In the abstract sense, the answer should be “no” — five Justices have decided that the three factors necessary for overruling have not been met. But if the ninth Justice believes that only factor A should be necessary for overruling, then the Court will overrule the prior case because a majority of the Court thinks the case should be overruled, even though a majority does not think that the case satisfies the criteria that the Court’s precedent about precedent outlines. Thus, one arrives at a result that seems problematic if precedent about precedent is taken seriously.
But Justice Thomas is not alone. There is also the phenomenon of the “perpetual dissent.”118 This is the practice of individual Justices continuing to author “opinions that reiterate a past dissenting view and then offer a rationale different from the majority’s (either to concur or dissent)” because the “Justice refuses to accept the rule of a prior decision . . . as controlling authority.”119 The most famous of these is Justices Brennan’s and Marshall’s standard practice of dissenting from the constitutionality of the death penalty,120 but the practice exists in multiple areas of law across judicial ideology.121 Interestingly, when Justices engage in perpetual dissent, they typically do not employ the Court’s stare decisis framework; instead, they focus on reiterating their view that the prior case or line of cases was wrongly decided on the merits.122 That suggests that when Justices engage in perpetual dissent, they are ignoring the Court’s precedent about precedent and focusing solely on the merits. Again, this waters down the practical effect of precedent about precedent. “Precedent about precedent is usually binding,” the perpetual dissenters seem to say, “but not when it comes to this issue about which I really care.”123
This rejection of precedent about precedent, either as a whole framework (in the case of Justice Thomas) or in specific applications (in the case of some perpetual dissenters), is possible because precedent about precedent is not binding on itself. Therefore, individual Justices can make a merits decision that they will not adhere to the Court’s precedents about precedent in certain contexts without worrying about any other stare decisis considerations.124 Thus, it seems that the paradox of precedent about precedent shapes judicial behavior by allowing for these individualized approaches. However, the earlier discussion of potential solutions to the problem of overruling precedent about precedent suggested that even if precedent about precedent is not binding on itself, there is value in seeing it as binding for all other cases.125 In other words, Casey was not binding when determining whether to overrule Casey as precedent about precedent, but it was binding when deciding whether to overrule other decisions.126 When individual Justices take a different approach, however, it looks like precedent about precedent is not binding even when applied to other cases.
There are a couple of possible solutions to this quandary as well. One possibility is to write off these individual views as illegitimate — an example of Justices “elevating [their] individual jurisprudence” above the Court’s own doctrine.127 From a purely theoretical standpoint, this position has appeal. It fits with the view that precedent about precedent is constraining at least when applied to other cases, even if not when applied to itself. When Justices ignore precedent about precedent in favor of their own views, they devalue the constraining force of precedent about precedent and thereby weaken the value of precedent as a whole.128 From a practical standpoint, however, this view cannot explain why Justices continue to vote according to their own views on precedent rather than the Court’s.129 It also ignores the fact that there is no disciplining method for Justices who refuse to follow the Court’s precedent about precedent.130 Thus, this view fits well with some of the theoretical arguments from before, but it may suffer in its description of actual practice.
That leads to the nonbinding view of precedent about precedent again. If precedent about precedent is not constraining on the Justices either because the Court cannot methodologically bind its members or because precedent about precedent is merely permissive, then individual Justices can legitimately refuse to follow precedent about precedent in favor of their own views.131 This view can, therefore, explain why Justices continue to favor personal precedent over institutional precedent about precedent,132 but it does not explain why individual Justices also continue to invoke the idea that the Court as a whole must adhere to its precedent about precedent.133
To summarize, the paradox of precedent about precedent spills over into individual approaches to precedent about precedent. There are different ways of thinking about these individual approaches, each of which offers its own set of justifications. Those approaches each present their own weakness as well. In the status quo, however, the Court and individual Justices neglect to think about these problems when they discuss precedent about precedent.
Conclusion
Precedent about precedent presents a paradox that gives it a unique status within our system of stare decisis because a court overruling precedent about precedent will not apply the stare decisis framework that the precedent about precedent established. Dobbs is a recent example of this phenomenon, but many critics of Dobbs have faulted the Court for not applying Casey’s stare decisis framework even as Dobbs overruled Casey as precedent about precedent. These critiques make little sense in light of the unique nature of precedent about precedent. Of course, that unique nature creates issues that the Court too often ignores. In particular, the paradox of precedent about precedent raises difficult questions about whether one Court can bind a future Court to a particular stare decisis framework and about the binding nature of precedent itself. This is an especially pressing problem on a Court deeply divided about the weight and value of stare decisis.134 It also demonstrates the difficulty that individual views about precedent create for a coherent system of precedent about precedent. This Note does not purport to resolve all of these problems, but it offers some preliminary answers. More than that, however, it is a call to future Courts and scholars to think more seriously about the concept of precedent about precedent.