Leah Litman is an assistant professor at the University of California at Irvine School of Law. Seth Davis is a professor at the University of California at Berkeley School of Law.
The decision in Kisor precipitated a separate writing by Justice Neil M. Gorsuch, which was joined by Justices Clarence Thomas and Brett M. Kavanaugh (in part), in which they announced that they do not feel bound by stare decisis principles in an important subset of cases. The progressive justices have gone out of their way to warn us that the conservative court is clearing the path to a radical reshaping of U.S. law.
The doctrine of stare decisis ensures stability in the law, protects private parties who rely on the law and helps preserve the court’s reputation as a nonpartisan — or at least not entirely partisan — institution. It does so by binding progressive justices to conservative rulings and conservative justices to progressive rulings. Departing from stare decisis, Roberts wrote just last year, “is an exceptional action demanding special justification.”
These occasions do come along: Brown v. Board of Education overturned the Supreme Court’s decision in Plessy v. Ferguson in order to declare school segregation unconstitutional. Lawrence v. Texas overturned Bowers v. Hardwick, in which the judges had said that sodomy laws were constitutionally permissible.
But if last year Roberts was able to take a stand for precedent, this year suggests that momentous change might be upon us. This term, the four-justice progressive wing of the court has repeatedly sounded the alarm bells about the five conservative justices’ commitment to stare decisis.
Justice Stephen G. Breyer wrote the judicial equivalent of a tornado warning in his dissent in Franchise Tax Board of California v. Hyatt, the decision where the conservative justices voted to overturn the court’s 40-year-old precedent in Nevada v. Hall. In his dissent, Breyer accused the majority of “overrul[ing] a decision only because five Members of a later Court come to agree with earlier dissenters.” Just to make sure he had everyone’s attention, he inserted two unnecessary citations to the court’s earlier decision in Planned Parenthood v. Casey, the 1992 decision in which a bare majority of justices opted not to overturn Roe.
Justice Elena Kagan later reminded us of Breyer’s warning by sounding one of her own in a recent dissent in Knick v. Township of Scott, Pennsylvania. In Knick, the five conservative justices voted to overrule yet another precedent — this one about the preconditions for bringing a takings claim in federal court. As Breyer did in Franchise Tax Board, Kagan wrote for the four progressive justices and took pains to note that the majority had decided to overrule a case “simply [because of] the majority’s view that [the case] was wrong.” She explained how that decision flew in the face of “the entire idea of stare decisis,” which “is that judges do not get to reverse a decision just because they never liked it.” The only support the majority could muster for overturning a 34-year-old precedent, Kagan noted, was last term’s decision that undercut public sector unions by overturning a 40-year-old precedent.
To end her dissent, Kagan quoted the end of Breyer’s dissent in Franchise Tax Board, which included this pregnant sentence: “Today’s decision can only cause one to wonder which cases the Court will overrule next.”
“Well, that didn’t take long,” Kagan wrote. “Now one may wonder yet again.”
The progressive justices are right to worry. As Gorsuch put it in Kisor, “today’s decision is more a stay of execution [for deference to agencies] than a pardon.” His opinion, which Thomas and Kavanaugh joined, in whole and in part, respectively, crafted a new exception to stare decisis. His opinion maintained that stare decisis allows the justices to abandon any opinion that merely tells the courts how to interpret a statute or the Constitution vs. an opinion that affirmatively declared the meaning of a particular statute or constitutional provision.
This might sound like a fine point. But this exception would free the justices to overrule precedents that direct courts to defer to administrative agencies’ interpretations of statutes or regulations. Taken for all it might suggest, this exception could release the justices from the obligation to respect stare decisis in some constitutional cases as well. Who knows what their new, ill-defined exception might embolden them to do.
Kisor is not the first time one of the conservative justices has openly challenged the idea of stare decisis. In a separate writing this term, Thomas made clear that he thinks stare decisis does not require him to adhere to decisions so long as he believes they are really wrong. But that is what stare decisis does — it is supposed to prevent the court from flip-flopping just because a majority of justices thinks a case is wrong — or even really wrong. Four other justices — Samuel A. Alito Jr., Gorsuch, Thomas and Roberts — have also signaled they are open to reconsidering well-settled doctrines of administrative law that allow the Environmental Protection Agency to regulate pollutants and the Consumer Financial Protection Bureau to oversee the mortgage industry. And Kavanaugh’s vote in Kisor and his lower court opinions make clear that he is willing to join them in deconstructing the administrative state, stare decisis be damned.
The warning signs are all there. The progressive justices are pleading with us to pay attention. The only question is whether we will get the message.