Stare Decisis, Legitimacy, and Liberals Giving Hypocrisy a Bad Name

We’ve all seen the Left’s caterwauling about how the Supreme Court, now with a working originalist and textualist majority for the first time in my life, has thrown away its “legitimacy,” largely because of its supposedly crude and partisan disregard for stare decisis. Numerous bare-fanged op-eds about the need for certainty in the law led directly to the attempt to assassinate a conservative Justice at his home in front of his children scholarly research explaining why stare decisis is so important.

Actually, it is important, because one of the main purposes of law is to let those who must live under it know what the rules are. Accordingly, the rules should have a high degree of stability, lest law become unpredictably shifting ground depending on who has a momentary SCOTUS majority. On the other hand, when the Court gets it wrong, particularly in a matter of constitutional interpretation — and hence one that cannot be corrected by statute — there is no realistic alternative to the Court itself stepping in to correct its errors, even with the inescapable price of upsetting expectations that, over time, will have settled in.

In other words, like everything else important in law, the question when to follow existing if poorly-grounded precedents, versus when to correct or discard them, requires thinking through the costs of alternative courses of action and not just snarling “illegitimate” when you get a decision you don’t like. Liberals used to know this, but that was then.

The essential arguments are covered in the dueling majority and dissenting opinions in Dobbs, and in other places, and it is not my purpose here to reprise them, which I couldn’t responsibly do anyway in the limited space of a Ringside entry. For those interested, Prof. Richard Re of the University of Virginia Law School has this well-regarded and insightful law review article.

Instead, my ambition is more modest. It’s to show what the Lefties actually think of stare decisis, which they were kind enough to tell us in their giddy and unguarded moments in mid-2016 when they thought they were going to win all the marbles. Ed Whelan in his NRO Bench Memos lays it out.

It’s very sad to learn from Slate’s Mark Joseph Stern what a difficult time liberal law professors are having adapting “intellectually, pedagogically, and emotionally” to the new conservative majority on the Supreme Court. But even beyond Stern’s usual screeching hyperbole…, I find it difficult to take seriously the attachment to precedent that these professors supposedly have.

Recall that just over six years ago, when liberals were contemplating the possibility of a progressive majority on the Court, two of the most respected figures in liberal legal academia were openly salivating at the prospect that conservative precedents would quickly crumble.

In this Atlantic essay, Erwin Chemerinsky (now dean of Berkeley law school) found “tantalizing” the thought of a Supreme Court that “likely would overrule” the Court’s landmark Second Amendment ruling in D.C. v. Heller (2008) and that would move the Court’s decisions dramatically leftward on a broad range of issues, including preventing any regulation of abortion, entrenching racial quotas, eliminating First Amendment protections against campaign-finance restrictions, abolishing the death penalty, and extravagantly overreading the Establishment Clause (farewell, school choice, and goodbye, In God We Trust). And all of that was before Chemerinsky even began briefly sketching his “dream” agenda.

Dean Chemerinsky was not alone.

In his infamous blog post “Abandoning Defensive Crouch Liberal Constitutionalism,” Harvard law professor Mark Tushnet urged liberals to “compil[e] lists of cases to be overruled at the first opportunity.” Tushnet wasn’t concerned (as Stern and his professors purport to be) that overrulings would complicate the bar exam or require professors to “overhaul [their] classes.” On the contrary: “What matters”—what ought to be welcomed and celebrated, Tushnet made clear—“is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up.”

More broadly, Tushnet proposed “taking a hard line (‘You lost, live with it’) [rather] than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all.” Liberals should “[a]ggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling,” and they should “[r]emember that doctrine is a way to empower our allies and weaken theirs.” And “Finally (trigger/crudeness alert), f*** Anthony Kennedy.” Except that Tushnet didn’t use asterisks.

As Ed observes, there were lots of liberal law professors in 2016 who didn’t think the candor of Chemerinsky and Tushnet was tactically smart, “and who might have advised ‘Shhhh!’ But which professors, if any, disagreed on the substance and urged that conservative precedents they thought fundamentally wrong should be left in place?”

Which professors indeed.

This, I think, is the nub of it. Starting in the mid-1930’s, and accelerating particularly in the late 1950’s through at least the mid-1970’s, liberals pretty well had their way on the Supreme Court, and the Court’s resulting indiscipline and activism became ingrained in our law. Hence precedents like Miranda and Roe, decisions which, regardless of their merit vel non as policy prescriptions, were flights of fancy as expositions of what the Constitution requires. Now, with a SCOTUS majority that actually believes in fidelity to the text, the monuments (or relics if you prefer) of that era beg for reconsideration. Hopefully, they’re going to continue to get it — the path made easier by liberal enthusiasm for “transformation” of only six short years ago…if only they could remember, which, I assure you, they’ll pretend not to. This is because their real concern is not for stare decisis, a theme that with them has all the authenticity and staying power of Joe Biden’s memory. Their “concern,” if that’s the right word, is with their sense of entitlement to a left-leaning Supreme Court, a sense that took hold over many decades. Now that the entitlement is threatened, they’re madder than hell, and they don’t aim to take it anymore.