In marbury v. madison (1803) Chief Justice john marshall rested the legitimacy of judicial review of the constitutionality of legislation on the necessity for courts to "state what the law is" in particular cases. The implicit assumption is that the Constitution is law, and that the content of constitutional law is determinate—that it can be known and applied by judges. From the time of the nation's founding, lawyers and judges trained in the processes of the common law have assumed that the law of the Constitution is to be found not only in the text of the document and the expectations of the Framers but also in judicial precedent: the opinions of judges on "what the law is," written in the course of deciding earlier cases. (See stare decisis.)
Inevitably, issues that burned brightly for the Framers of the Constitution and of its various amendments have receded from politics into history. The broad language of much of the Constitution's text leaves open a wide range of choices concerning interpretation. As the body of judicial precedent has grown, it has taken on a life of its own; the very term "constitutional law," for most lawyers today, primarily calls to mind the interpretations of the Constitution contained in the Supreme Court's opinions. For a lawyer writing a brief, or a judge writing an opinion, the natural style of argumentation is the common law style, with appeals to one or another "authority" among the competing analogies offered by a large and still growing body of precedent.
The same considerations that support reliance on precedent in common law decisions apply in constitutional adjudications: the need for stability in the law and for evenhanded treatment of litigants. Yet adherence to precedent has also been called the control of the living by the dead. Earlier interpretations of the Constitution, when they seem to have little relevance to the conditions of society and government here and now, do give way. As Chief Justice earl warren wrote in brown v. board of education (1954), "In approaching [the problem of school segregation, we cannot turn the clock back to 1868 when the [ fourteenth ] amendment was adopted, or even to 1896 when plessy [ v. ferguson ] was written. We must consider public education in the light of its full development and its present place in American life.…" Justice oliver wendell holmes put the matter more pungently: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV."
Although the Supreme Court decides only those issues that come to it in the ordinary course of litigation, the Court has a large measure of control over its own doctrinal agenda. The selection of about 150 cases for review each year (out of more than 4,000 cases brought to the Court) is influenced most of all by the Justices' views of the importance of the issues presented. (See certiorari, writ of.) And when the Court does break new doctrinal ground, it invites further litigation to explore the area thus opened. For example, scores of lawsuits were filed all over the country once the Court had established the precedent, in baker v. carr (1962), that the problem of legislative reapportionment was one that the courts could properly address. The Justices see themselves, and are seen by the Court's commentators, as being in the business of developing constitutional doctrine through the system of precedent. The decision of particular litigants' cases today appears to be important mainly as an instrument to those lawmaking ends. The theory of Marbury v. Madison, in other words, has been turned upside down.
Lower court judges pay meticulous attention to Supreme Court opinions as their main source of guidance for decision in constitutional cases. Supreme Court Justices themselves, however, give precedent a force that is weaker in constitutional cases than in other areas of the law. In a famous expression of this view, Justice louis d. brandeis, dissenting in Burnet v. Coronado Oil & Gas Co. (1932), said, "in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. The court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function."
Although this sentiment is widely shared, Justices often are prepared to defer to their reading of precedent even when they disagree with the conclusions that produced the earlier decisions. Justice john marshall harlan, for example, regularly accepted the authoritative force of warren court opinions from which he had dissented vigorously. The Court as an institution occasionally takes the same course, making clear that it is following the specific dictates of an earlier decision because of the interest in stability of the law, even though that decision may be out of line with more recent doctrinal developments.
The Supreme Court is regularly criticized, both from within the Court and from the outside, for failing to follow precedent. But a thoroughgoing consistency of decision cannot be expected, given the combination of three characteristics of the Court's decisional process. First, the Court is a collegiate body, with the nine Justices exercising individual judgment on each case. Second, the body of precedent is now enormous, with the result that in most cases decided by the Court there are arguable precedents for several alternative doctrinal approaches, and even for reaching opposing results. Indeed, the system for selecting cases for review guarantees that the court will regularly face hard cases—cases that are difficult because they can plausibly be decided in more than one way. Finally, deference to precedent itself may mean that issues will be decided differently, depending on the order in which they come before the Court. The Court's decision in In re Griffiths (1973), that a state cannot constitutionally limit the practice of law to United States citizens, is still a good precedent; yet, if the case had come up in 1983, almost certainly it would have been decided differently. (See aliens.)
The result of this process is an increasingly fragmented Supreme Court, with more plurality opinions and more statements by individual Justices of their own separate views in concurring opinions and dissents—thus presenting an even greater range of materials on which Justices can draw in deciding the next case. In these circumstances, it is not surprising that some plurality opinions, such as that in moore v. city of east cleveland (1977), are regularly cited as if they had a precedent value equal to that of opinions of the court.
The range of decisional choice offered to a Supreme Court Justice by this process is so wide as to call into the question the idea of principled decision on which the legitimacy of judicial review is commonly assumed to rest. Yet the hard cases that fill the Supreme Court's docket—the very cases that make constitutional law and thus fill the casebooks that law students study—do not typify the functioning of constitutional law. A great many controversies of constitutional dimension never get to court, because the law seems clear, on the basis of precedent; similarly, many cases that do get to court are easily decided in the lower courts. Although we celebrate the memory of our creative Justices—Justices who are remembered for setting precedent, not following it—the body of constitutional law remains remarkably stable. In a stable society it could not be otherwise. As Holmes himself said in another context, "historic continuity with the past is not a duty, it is only a necessity."
Kenneth L. Karst
Easterbrook, Frank H. 1982 Ways of Criticizing the Court. Harvard Law Review 95:802–832.
Levi, Edward H. 1949 An Introduction to Legal Reasoning. Chicago: University of Chicago Press.
Llewellyn, Karl N. 1960 The Common Law Tradition. Boston: Little, Brown.
Monaghan, Henry P. 1979 Taking Supreme Court Opinions Seriously. Maryland Law Review 39:1–26.
A court decision that is cited as an example or analogy to resolve similarquestions of lawin later cases.
The Anglo-American common-law tradition is built on the doctrine of stare decisis ("stand by decided matters"), which directs a court to look to past decisions for guidance on how to decide a case before it. This means that the legal rules applied to a prior case with facts similar to those of the case now before a court should be applied to resolve the legal dispute.
The use of precedent has been justified as providing predictability, stability, fairness, and efficiency in the law. Reliance upon precedent contributes predictability to the law because it provides notice of what a person's rights and obligations are in particular circumstances. A person contemplating an action has the ability to know beforehand the legal outcome. It also means that lawyers can give legal advice to clients based on settled rules of law.
The use of precedent also stabilizes the law. Society can expect the law, which organizes social relationships in terms of rights and obligations, to remain relatively stable and coherent through the use of precedent. The need is great in society to rely on legal rules, even if persons disagree with particular ones. Justice louis d. brandeis emphasized the importance of this when he wrote, "Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right" (Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 52 S. Ct. 443, 76 L. Ed. 815 ).
Reliance upon precedent also promotes the expectation that the law is just. The idea that like cases should be treated alike is anchored in the assumption that one person is the legal equal of any other. Thus, persons in similar situations should not be treated differently except for legally relevant and clearly justifiable reasons. Precedent promotes judicial restraint and limits a judge's ability to determine the outcome of a case in a way that he or she might choose if there were no precedent. This function of precedent gives it its moral force.
Precedent also enhances efficiency. Reliance on the accumulation of legal rules helps guide judges in their resolution of legal disputes. If judges had to begin the law anew in each case, they would add more time to the adjudicative process and would duplicate their efforts.
The use of precedent has resulted in the publication of law reports that contain case decisions. Lawyers and judges conduct legal research in these reports seeking precedents. They try to determine whether the facts of the present case precisely match previous cases. If so, the application of legal precedent may be clear. If, however, the facts are not exact, prior cases may be distinguished and their precedents discounted.
Though the application of precedent may appear to be mechanical, a simple means of matching facts and rules, it is a more subjective process. Legal rules, embodied in precedents, are generalizations that accentuate the importance of certain facts and discount or ignore others. The application of precedent relies on reasoning by analogy. Analogies can be neither correct nor incorrect but only more or less persuasive. Reasonable persons may come to different yet defensible conclusions about what rule should prevail.
The judicial system maintains great fidelity to the application of precedents. There are times, however, when a court has no precedents to rely on. In these "cases of first impression," a court may have to draw analogies to other areas of the law to justify its decision. Once decided, this decision becomes precedential.
Appellate courts typically create precedent. The U.S. Supreme Court's main function is to settle conflicts over legal rules and to issue decisions that either reaffirm or create precedent. Despite the Supreme Court's reliance on precedent, it will depart from its prior decisions when either historical conditions change or the philosophy of the court undergoes a major shift. The most famous reversal of precedent is brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), in which the Supreme Court repudiated the "separate but equal" doctrine of plessy v. ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). This doctrine had legitimated racial segregation for almost sixty years but finally gave way in Brown, when a unanimous court ruled that separate but equal was a denial of equal protection of the laws.
prec·e·dent • n. / ˈpresid(ə)nt/ an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances: there are substantial precedents for using interactive media in training | breaking with all precedent. ∎ Law a previous case or legal decision that may be or ( binding precedent) must be followed in subsequent similar cases: the decision set a precedent for others to be sent to trial in the U.S. • adj. / priˈsēd(ə)nt/ preceding in time, order, or importance: a precedent case.