The Role of Precedent in Constitutional Adjudication: An Introspection

In this Article, Professor Shapiro addresses the question of how courts should treat precedent.  He focuses on the category of “horizontal” precedent, specifically application of Supreme Court precedent by Supreme Court Justices.  He begins by identifying three rough categories of scholarly views on the effect of such precedent: (1) the view that precedent should not or does not influence Justices on issues where they disagree with precedent; (2) the view that when Justices disagree with precedent, it should only be followed (or is only followed) if certain other conditions are satisfied; and (3) the view that Justices should, or always do, follow precedent even when they disagree with the result unless certain conditions are satisfied.

Having laid out this schematic, Professor Shapiro takes a decidedly Burkean approach to the problem, placing himself in the third category; he takes the position that a precedent being “clearly incorrect” is a necessary, but not sufficient, condition for setting it aside.  Professor Shapiro asserts that constitutional meaning derived from text or original “public meaning” is distinguishable but not separable from judicial precedent.  With this in mind, and looking to Justice Kennedy’s opinion in Patterson v. McLean Credit Union to guide his analysis, Professor Shapiro articulates two criteria that should be satisfied before precedent is abandoned: (a) “the precedent(s) were clearly wrong when rendered or had clearly become unsound in the light of experience,” and (b) “the error is significantly obstructing the achievement of generally recognized and important objectives, is obstructing the vindication of basic rights, or (more cautiously) is so inconsistent with later precedent that its rejection is required in the interest of coherence and predictability in the law.”

Having stated his criteria, Professor Shapiro imagines that he himself is a newly appointed Supreme Court Justice and applies these criteria to a hypothetical test case.  Professor Shapiro engages in two alternate analyses applying his criteria, one which declines to apply the precedent and one which does.  After considering each, he concludes that he would vote to follow the precedent, despite his personal dislike for the outcome.