Super-Duper Precedent and the Kavanaugh Hearings

[S]tare decisis is neither an inexorable command, nor a mechanical formula of adherence to the latest decision, especially in constitutional cases. If it were, segregation would be legal . . . .

Citizens United v. FEC, 558 U.S. 310, 377 (2010) (Roberts, C.J., concurring) (cleaned up)


The decision was 7-1. In the ensuing decades, it had been reviewed, re-examined, and tweaked, but each time the Court reaffirmed the decision, so much so that the central question was not considered an open one.[1] The debate among the Justices when the case was implicated in later appeals was generally not whether the decision was right, but rather whether the case at bar comported with the principle laid down in the decision or ran afoul of it.[2] Fifty years on, lower courts could look and see that the Supreme Court had consistently reaffirmed that judgment.[3] The decision was “well-known and often cited,”[4] there had been “numerous decisions” standing for and reinforcing the principle enunciated in the decision,[5] and, as one court would put it, the decision “effectually settled” the issue it addressed.[6]

Additionally, given the well-settled status of the case, there was extensive reliance on it throughout the country. Many states, perhaps most, had laws on the books—or, if not laws, clear public policies—that were constitutional under the decision and that would be upset or undone if the decision were overruled.[7] Furthermore, overruling the decision would have drastic social consequences, beyond the systemic political ones. Reversing course and undoing this well-established precedent might threaten the Court’s legitimacy, make the Court look political, and upend many people’s lives.

Despite all this, however, there was an even graver problem cutting in the opposite direction–Plessy v. Ferguson was wrongly decided.[8] “Separate but equal” was a morally reprehensible farce, incorrect on both the law and the facts. As a matter of law, Plessy effectively ignored the constitutional revolution that occurred by way of the Reconstruction Amendments, which sought to eliminate the blight of slavery—as well as every last vestige, badge, or incident of it—from the United States. As a matter of fact, Plessy ignored the painfully obvious reality that “separate” was not, and could never be, “equal,” but rather was a legal artifice deliberately employed to keep former slaves subjugated de facto—and thus indirectly de jure—to whites in the United States.

And so, in Brown v. Board of Education, the Supreme Court gutted Plessy, effectively overruling it.[9] The Court undoubtedly did so well aware of the political and social ramifications of its holding. However, a constitutionally defective decision did not merit preservation solely because, with the passage of time and political acquiescence, the decision had become “well settled.” The error had to be rectified, regardless of the political and social upheaval, the follow-on consequences, or the clean up that would be required.[10]

More important than fealty to prior Supreme Court decisions, after all—even the “well settled” ones like Plessy—is fealty to the Constitution that those decisions must be based on (and that are ultra vires if not). To rework slightly those famous words from Chief Justice Marshall in Marbury:

[I]f a [precedent] be in opposition to the Constitution, if both the [precedent] and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the [precedent], disregarding the Constitution, or conformably to the Constitution, disregarding the [precedent], the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary [precedent] of the [Court], the Constitution, and not such ordinary [decision], must govern the case to which they both apply. Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the [precedent]. This doctrine would subvert the very foundation of all written Constitutions.[11]

The Constitution is the Supreme Law of the Land, according to Article VI. While the Court has been entrusted with the critical task of interpreting that Charter and applying it in specific cases and controversies, the Court’s interpretation and application of that document is (pace Justice Jackson) neither infallible nor final.[12] This, too, the Supreme Court has repeatedly recognized:

[W]e are not unmindful of the desirability of continuity of decision in constitutional questions. However, when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. This has long been accepted practice . . . .[13]

Sometimes prudence–an important virtue, to be sure–might militate in favor of caution or incrementalism in walking back old errors. But a longstanding mistake does not gain legitimacy and command unwarranted respect simply because time has passed.


Which brings me to the confirmation hearings for Justice-Designate Kavanaugh beginning today. It is almost certain that now-Justice (then-Professor) Kagan’s prescient assessment of these hearings as “a vapid and hollow charade” will once again prove true.[14] Senators will use the hearings as a chance to burnish and brandish their purported ideological bona fides. Judge Kavanaugh, thoroughly vetted and murder-boarded, will adopt the tried-and-true method of “alternating platitudinous statement and judicious silence” when presented with questions and hypotheticals by the politicians grilling him.[15]

Among the subjects certain to come up (and certainly not going to be answered) is the topic of Judge Kavanaugh’s views on prior Supreme Court decisions—particularly those with significant political salience. Past decisions disfavored by Senators will be criticized as “partisan,” “activist,” or “ideological,” and will be described as “split” or “closely divided,” etc. Past decisions favored by Senators will be hailed as “iconic,” “momentous,” “landmark,” etc. Of the latter, we are sure to hear from Senators about “super precedent.”[16] If we are lucky, we might even hear about “super duper precedent.”[17]

Such rhetorical questioning may generate some heat but is unlikely to create any light. In part, that is because “precedent” and “super precedent” are mostly legally-insignificant politician-speak for “cases I don’t really care about” versus “cases whose outcomes I really like.” A precedent is just a regular ol’ Supreme Court opinion; a “super precedent” ostensibly deserving of more respect is a politically-favored one. Perhaps the “super-precedent” ostensibly merits that status because it has been reexamined, reconsidered, and reaffirmed, unlike the regular precedent that stands by itself in the Court’s corpus. But, as the discussion of Plessy above was meant to illustrate, the sheer fact that a decision has been passed on and reaffirmed, even if on multiple occasions over a long period of time, does not itself furnish a valid basis for retaining it.

In this Republic, the Constitution is the supreme law, and all other laws of whatever kind—executive decisions, legislative enactments, judicial opinions, etc.—are under that Constitution and must be judged by it. The fact that one decision or another might be “super precedent” should not alter or affect the outcome of this fundamental, first order assessment of whether the subordinate law comports with the superior law. When the Justices of the Supreme Court are asked to conduct such an assessment, it is their province and duty to decide which law governs–Constitution over precedent, for instance–and to say what that law then is and requires in a given case.

Thus, what matters more than Judge Kavanaugh’s purported allegiance to any “super precedent” is that Judge Kavanaugh uphold and faithfully apply the Constitution. Much like the Justices on the Brown Court before him, Judge Kavanaugh should be willing to let the political chips fall where they may rather than preserve old-but-wrong precedent simply because it is “super-precedential” and its overruling could prove a thorny endeavor. In the midst of the blunt questions and evasive answers this week, hints of that commitment are what we should be looking for.




[1] McCabe v. Atchison, T. & S. F. R. Co., 235 U.S. 151, 160 (1914); see also Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938); Gong Lum v. Rice, 275 U.S. 78 (1927); Chiles v. Chesapeake & O. R. Co., 218 U.S. 71 (1910); Chesapeake & O.R. Co. v. Kentucky, 179 U.S. 388 (1900).

[2] Atchison, T. & S. F. R. Co. v. Matthews, 174 U.S. 96, 105-06 (1899).

[3] Simmons v. Atlantic Greyhound Corp., 75 F. Supp. 166, 169 (W.D. Va. 1947); see also Carr v. Corning, 182 F.2d 14, 17 (D.C. Cir. 1950); McSwain v. Cnty. Bd. of Educ., 104 F. Supp. 861, 868-69 (E.D. Tenn. 1952); Beal v. Holcombe, 103 F. Supp. 218, 219 (S.D. Tex. 1950); Wrighten v. Univ. of S.C., 72 F. Supp. 948, 950 (E.D. S.C. 1947); Henderson v. United States, 63 F. Supp. 906, 913 (D. Md. 1945).

[4] Camp v. Recreation Bd. for D.C., 104 F. Supp. 10, 12 (D.D.C. 1952).

[5] Rice v. Arnold, 54 So. 2d 114, 118 (Fla. 1951).

[6] Wall v. Oyster, 36 App. D.C. 50, 54 (D.C. 1910).

[7] See John P. Roche, Plessy v. Ferguson: Requiescat in Pace?, 103 U. Pa. L. Rev. 44, 47 (1954).

[8] 163 U.S. 537 (1896).

[9] 347 U.S. 483 (1954).

[10] See, e.g., Brown v. Bd. of Educ. II, 349 U.S. 294 (1955); see also Cooper v. Aaron, 358 U.S. 1 (1958).

[11] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).

[12] Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring).

[13] Smith v. Allwright, 321 U.S. 649, 665 (1944).

[14] Elena Kagan, Confirmation Messes, Old and New, 62 U. Chi. L. Rev. 919, 941 (1995).

[15] Id. at 928.

[16] See Austin Yack, Feinstein: Roe v. Wade Is ‘Super Precedent,’ Nat’l Review (Mar. 20, 2017).

[17] Jeffrey Rosen, So, Do You Believe in ‘Superprecedent’?, N.Y. Times (Oct. 30, 2005) (“The term superprecedents first surfaced at the Supreme Court confirmation hearings of Judge John Roberts, when Senator Arlen Specter of Pennsylvania, the chairman of the Judiciary Committee, asked him whether he agreed that certain cases like Roe had become superprecedents or ‘super-duper’ precedents—that is, that they were so deeply embedded in the fabric of law they should be especially hard to overturn.”).

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