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Elite lawyer brain: An apparently incurable condition

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A forthcoming book argues that a law clerk’s memo to David Souter kept Roe from being overruled, by convincing Souter (and eventually O’Connor and Kennedy, who joined him in “authoring” the joint plurality opinion in Casey) that overruling Roe would do “incalculable damage” to the Court’s standing with the American public, because the polis would lose faith in the Court as a “neutral arbiter” of the law.

This view is reflected in the key passage from that opinion, which is one of the most preposterous ever issued by a Court that has turned out some doozies over the years:

In two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first, a point beyond which frequent overruling would overtax the country’s belief in the Court’s good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation.

That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe. But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question. Cf. Brown v. Board of Education349 U. S. 294, 300 (1955) (Brown II) (“[I]t should go without saying that the vitality of thee] constitutional principles [announced in Brown I,] cannot be allowed to yield simply because of disagreement with them”).

The country’s loss of confidence in the Judiciary would be underscored by an equally certain and equally reasonable condemnation for another failing in overruling unnecessarily and under pressure. Some cost will be paid by anyone who approves or implements a constitutional decision where it is unpopular, or who refuses to work to undermine the decision or to force its reversal. The price may be criticism or ostracism, or it may be violence. An extra price will be paid by those who themselves disapprove of the decision’s results when viewed outside of constitutional terms, but who nevertheless struggle to accept it, because they respect the rule of law. To all those who will be so tested by following, the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete. From the obligation of this promise this Court cannot and should not assume any exemption when duty requires it to decide a case in conformance with the Constitution. A willing breach of it would be nothing less than a breach of faith, and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that.

This is the kind of transparently ridiculous bullshit that the Harvard and Yale and Princeton law schools are designed to make sure their most prominent graduates crank out. The basic argument is that if the Court plays too fast and loose with the doctrine of precedent, especially in politically contentious cases, then the great unwashed will lose their purported faith in the Court as an apolitical interpreter of the law.

In fact the public as a whole knows nothing about judicial arguments over the appropriate scope of stare decisis, and cares less.

As for the public’s view on whether courts should be neutral arbiters of the law, the (fairly small) percentage of the public which has ever even pondered that question has a very straightforward opinion regarding the matter, which could be summarized as “decisions we like represent a neutral interpretation of the law, while decisions we don’t represent legislating from the bench.”

In short the bloviating in Casey about how maintaining a “principled” approach to the doctrine of precedent is critical to the institutional legitimacy of the Court is completely untethered from political and social reality. It is the kind of thing only a law professor or a federal judge could actually believe. (Imagine arguing that Citizens United or Shelby County should be upheld because not doing so would undermine the public’s faith in the apolitical nature of the SCOTUS!).

Law is politics, and it can’t not be politics. The fact that in 2021 we’re still seeing the kind of nonsense spewed forth in Casey treated with worshipful deference by the kind of people who become law professors and federal judges suggests that the pedagogical methods employed at our most elite law schools in particular remain . . . unsound.

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