To overrule a precedent

When the Supreme Court overrules an important precedent, it needs good reasons.  Overruling Roe v. Wade, it will claim the most persuasive reason of all: truth. Roe, it will assert, got the law wrong. Critics will respond by appealing to the importance of respecting precedents if citizens are to be able to rely on law. Sometimes it is better to live with error.  

The argument around Roe has been set up in these terms: truth vs practicality. This is how it was framed, for example, at the recent Senate hearings on Trump’s Supreme Court nominees. The argument sounds plausible, but it misrepresents the nature of constitutional law. 

Law must distinguish itself from politics. The justices, accordingly, seek to persuade us that an authoritative source “binds” their decisionmaking. The important shift in constitutional law over the last several decades concerned the nature of this source. In place of precedents, conservative jurists turned to the original meaning of the text. To the originalist, a precedent can be wrong because it fails to accord with the meaning of the text as it was generally understood when adopted. 

Originalism approaches the constitutional order as if it were a project of the Founders’ generation. This is a familiar form of legal construction. A corporate charter is a project that simultaneously grants and limits power. The corporation exists as long as a regime of law recognizes – that is, gives legal effect to – its charter. A constitution may look like an enlarged corporate charter, but the analogy fails. A corporation depends upon a preceding legal order, but there is no law that precedes and makes possible a constitution. Corporate stakeholders have no responsibilities that they cannot decline to accept. Citizens, on the other hand, are both bound by and responsible for the constitution. 

Once we dismiss the corporate analogy, there is no obvious reason why contemporary citizens are bound to the beliefs of a small group of long-dead predecessors. Had there been a continuous practice of originalist interpretation of the Constitution, there might be an answer grounded in custom — not in the compelling character of originalism itself.  But originalism was not our practice through most of the 20th century.     

The alternative to originalism puts precedent at the center of the constitutional rule of law. This approach thinks of law as a system rather than a project. A system develops according to an immanent order, not according to an external plan or intention. Darwin discovered the systemic quality of nature. A market, too, has a systemic order that develops in and through individual transactions. Systemic order is no less “objective” than that of a project.

The originalist makes the creationist’s mistake of believing that order must derive from intentional design. The common law, however, has long been understood as a system of principles immanent in the cases. Lawyers are trained to read through the cases to their principles. We have confidence that the cases add up to something beyond their individual facts. Those principles did not precede the cases; they were not abstractions that informed anyone’s design, for there was no master of the project. 

American constitutionalism began as a project distinct from the system of common law.  The Framers applied abstract principles of political science in a project of legal construction. Of course, that science was an 18th century production. Wise as the Framers were, they knew nothing of political parties, of administrative agencies, of macroeconomics, of feminism, or racial equality. To wonder how they would have thought of the internet and the power of social media is to engage in flights of imaginative fancy. 

The history of American constitutional law through the 19th century parallels the history of other disciplines in its move from project to system. By the 20th century, our constitutional law was systemic. It had become a common law practice — the meaning of law was bound to the interpretation of precedents.

Consider a case presenting a problem of free speech. Every lawyer is trained to address the problem by reading the cases to discern the immanent principles to which they give expression. The cases are approached with the confidence that together they describe the best order of speech regulation in our democracy. They are not random, accidental or even second best. That immanent order is the law of free speech, which Americans are asked to support and defend. 

Judges are not historians, but lawyers trained to read the cases as expressions of principles. Each time the court overrules a precedent, it risks disturbing this set of beliefs about the systemic character of law. Absent these beliefs, however, we have no compelling explanation for the power of the court. Does this mean the court can never overrule a precedent? Not at all. The case law is working out the meaning of the principles by which we live. As those principles develop, some past decisions will look like missteps.

By this standard, Roe is a sound precedent. Roe itself is not a particularly well-expressed opinion. But in a system of law, later cases bring out the immanent truth of earlier ones. That is exactly the post-Roe history of liberty and equality central to the issue of choice. The doctrine of individual liberty extends to a wide range of privacy rights; the principle of gender equality extends to every dimension of civil, political and social practice.   

A decision to overrule Roe may claim to vindicate the truth of the law, but the rule of law cannot survive the kind of truth it imagines.

Paul W. Kahn is the Robert W. Winner Professor of Law and Humanities at Yale Law School.