The Problem with Superprecedent
posted by Daniel Solove
Jack Balkin (law, Yale) has an excellent post over at Balkinization about my colleague Jeffrey Rosen’s New York Times essay about superprecedents. The notion of superprecedent is that there are cases that are so firmly entrenched that they ought not to be overturned despite being in error. Roe v. Wade is the superprecedent that most have in mind.
In his post, Jack Balkin explains that a strategy of many conservatives is to “accept Roe as settled (as modified by Casey) but begin to chip away at it over the long haul.”
He explores three justifications for superprecedents. The first justification is that a precedent has held on for a long time and weathered some attacks. But this justification does little to justify why the precedent deserves to stand.
A second justification is that a lot of law has built up upon a precedent. The precedent serves as “a support beam in a house that, even if not installed correctly or in the right place, cannot now be removed without seriously endangering the safety of the occupants.”
The third justification is that a “particular precedent which was at one point highly controversial is now widely agreed to be a foundational and highly admirable articulation of constitutional values.”
Balkin argues that Brown v. Board of Education “falls into all three categories” above whereas Roe v. Wade “falls into at most categories (1) and (2), and probably only category (1).” He concludes: “Talking about Roe as a ‘superprecedent’ obscures far more than it clarifies.”
I very much agree. The first justification Balkin identifies is one of longevity and staying power. This justification does not strike me as a valid reason to uphold a precedent. Precedent lasting over half a century has been reversed in the past. Roe has existed for a long time, but not for an unusually long time. If Roe is a superprecedent, then why wasn’t Plessy v. Ferguson, which wasn’t reversed until nearly 60 years later in Brown v. Board of Education? Why wasn’t Olmstead v. United States a superprecedent, which wasn’t reversed until nearly 40 years later in Katz v. United States?
The second justification is one of practicality. But practicality has not stopped the Supreme Court in making many fundamental changes in the constitutional system. Brown mandated dramatic changes in the South; Katz overturned a settled understanding of the Fourth Amendment, affecting the police across the land. The Court has frequently rendered decisions that have caused tremendous doctrinal shockwaves let alone tremendous effects on the legal system more generally. Just look at the recent decisions about criminal sentencing in Booker and Blakely.
The third justification – widespread consensus – strikes me as the most valid reason to keep a precedent in place.
So why all the talk about superprecedents? Perhaps because many conservatives don’t want to rock the boat and roll back the administrative state, abolish the Warren Court’s system of criminal procedure, eliminate the right to privacy entirely, and so on. Such radical reversals in precedent would create, in Justice Scalia’s word, a Kulturkampf, a cultural war. So the concept of superprecedent seems to be a way for certain conservatives to begrudgingly hold their noses, accept many precedents, and then say “no more.”
But can this be done in a principled manner? Can one simply freeze controversial lines of cases, such as the right to privacy line, and just tread water? It is difficult to hold a line of cases at a standstill. Analogous cases to precedential cases will invariably arise; and precedents have logical implications that extend beyond existing holdings. It strikes me as hard to be principled and say: “Ok, this precedent is wrong, so we’ll keep it, but we won’t extend it to its logical conclusions. We’ll just find any way possible to keep its growth stunted.” Can such a principled theory of superprecedent be developed? I have my doubts.