Supreme Court justices have sounded a similar theme in recent speeches around the country — but one that bears little resemblance to the court they sit on. At the University of Notre Dame, Justice Clarence Thomas insisted judges were not supposed to base decisions on personal feelings or religious beliefs. At the University of Louisville, Justice Amy Coney Barrett wanted to convince students “that this court is not comprised of a bunch of partisan hacks”; “competing judicial philosophies,” not politics, control their decisions. Justice Stephen Breyer agreed: You “gradually pick up the mores of the institution . . . you’re a judge, and you better be there for everybody.”
True, this is a court with diverging “judicial philosophies.” But these philosophies map closely onto partisan differences — about civil rights, economic regulation, religious rights, voting rights. According to Erwin Chemerinsky, the dean of Berkeley Law School, “Time and again, the court’s Republican majority has handed down decisions strongly favoring Republicans in the political process.”
Moreover, the judicial philosophies of Barrett, Brett Kavanaugh, and Neil Gorsuch are at odds with decades of Supreme Court precedent. While the “mores” of the institution influence judges, as Breyer said, it is not so clear for these judges. Judicial mores should include respect for precedent. Precedent constrains judicial discussion in a way that it does not constrain political discussion. It links judges across the political spectrum, like First Circuit Court of Appeals Judge Sandra Lynch (appointed by Bill Clinton), who joined Gorsuch and Kavanaugh (both appointed by Donald Trump) and others in writing a scholarly treatise on “The Law of Precedent.” Respect for precedent means that the law will not flip-flop from one administration to another. While elections have consequences, those consequences should not be so dramatic for courts.
Except for this court. For this court precedent is not worth much. In 2018, the court’s conservative majority held that the requirement that public employees pay agency fees to their union violated free speech, reversing a decision Justice Elena Kagan described as “entrenched in this nation’s law — and in its economic life — for over 40 years.”
The next term, the court overruled another long-lived precedent, holding that the Constitution mandated a Nevada court to grant California immunity from a private lawsuit brought against a California state agency (rather than leaving it up to the state to decide). Breyer’s dissent was curious: He felt compelled to justify why precedent even matters. “Later appointed judges,” he said, “may come to believe that earlier appointed judges erred and may be tempted to overrule cases with which they disagree,” but they should “resist that temptation” without substantial reasons. There were no such reasons in the Nevada case, he said, adding ominously: “Today’s decision can only cause to wonder which cases the court will overrule next.”
A month later, when another decades-old precedent bit the dust, Kagan, referring to Breyer’s musings, cracked: “Well, that didn’t take long.” The majority overruled 35-year-old precedent about when the government had to compensate an owner whose property it seized. She added, concerned about the next precedent on the chopping block: “Now one may wonder yet again.”
It is a mistake to believe that these cases are just a prelude to overturning Roe v. Wade. They cut across a wide swath of decisions. This term, Gorsuch, dissenting from the certiorari denial in a defamation case, urged reconsideration of New York Times v. Sullivan, the landmark 1964 case that made it harder for public officials to win libel suits. Remember that scholarly book on the importance of precedent which he coauthored? In 2020, Gorsuch voted to overturn precedent 75 percent of the time.
The Institute for Justice, a libertarian organization, rejected the idea that a judge should refuse to reconsider precedent in the interest of “judicial restraint.” Overturning precedent is a good thing; “the Constitution” — their view of it at least — “trumps precedent.”
True, some precedents bear reconsideration, like the pre-Civil War Dred Scott decision, in which the court held that the Constitution did not include citizenship for Black Americans. But stripping away wholesale respect for precedent in many areas and at breakneck speed raises profound questions. It’s not just that the “judicial philosophies” of the justices diverge from decades of settled law. It is that they believe they have a right to follow their approaches now regardless of how many precedents are “smashed to smithereens,” as Kagan said.
Whether it is “competing judicial philosophies” or garden-variety partisan politics is just semantics. If it quacks like a duck. . . .
Nancy Gertner is a retired federal judge in Boston and a law professor at Harvard.