This blog has been quiet, at least for my part, because some of my core job duties like grading and article-writing had to take precedence over blogging. But with some deadlines behind me, I now have time to share a short paper for the Supreme Court Review I recently posted on SSRN.

The paper is called Precedent and Discretion, and addresses some emerging theories of precedent on the Supreme Court. Here’s the abstract:

Supreme Court precedent is a topic of perennial prominence. The Court overruled or severely limited multiple precedents last year, just as it did the year before that. Because of our widely-repeated norm of stare decisis, every overruling is criticized. Scholars have then debated whether the Court needs a stronger norm of stare decisis, so that it overrules fewer cases.

This focus is misguided. Rather than worrying about which cases will be cast aside, we should pay more attention to those precedents that are left standing in place. Many of the Court’s questionable precedents nonetheless go unquestioned. The real problem is not that the Court overrules too much, but that it overrules without a theory that explains why it overrules so little.

At last, it seems such theories may be coming. Last term, Justice Thomas (in Gamble v United States) and Justice Alito (in Gundy v United States) each attempted to explain some of their decisions to reject and adhere to precedent. These explanations deserve serious scholarly scrutiny, which they have not yet received.

Unfortunately, these interventions do not solve, and indeed they exacerbate, the problem. What they propose is neither a regime of adherence to precedent, nor a regime without precedent, but rather a regime in which individual Justices have substantial discretion whether to adhere to precedent or not. This turns precedent from a tool to constrain discretion into a tool to expand discretion, and ultimately into a tool to evade more fundamental legal principles.

Part I describes the state of stare decisis in the Court today. Part II discusses Justice Thomas’s theory that precedent must be overruled when it is “demonstrably erroneous.” Part III describes Justice Alito’s theory that precedents ought not be overruled on the basis of “halfway originalism.” Part IV explains why discretionary precedent—of which these theories are examples—are worse than no precedent at all.