A Matter of Personal Precedent

OVER THE PAST YEAR, Professor Richard M. Re’s analysis of justices’ use of “personal precedents” at the Supreme Court has attracted attention from many corners, including the Harvard Law Review, which published his article on the topic this past January, and The New York Times, which previewed it back in April 2022.

Re defines “personal precedent” as a judge’s propensity to adhere to her own previously expressed views of the law, including previous court opinions, law review articles, speeches and confirmation testimony.

The Times treatment preceded the abortion-opinion leak in Dobbs v. Jackson Women’s Health by less than a month, by which point there was little question that, as former appeals Judge Richard A. Posner warned in 2008, “If changing judges changes the law, it is not even clear what law is.”

Re, however, argues that the apparent “choice between impersonal law and personal whimsy poses a false dichotomy.” He argues that adherence to one’s previously expressed legal views offers a path to decision-making that is “both personal and law-like.”

Personal precedents will always play a role when a justice is faced with open questions or with ancient precedent that they believe to have been based on prejudice, ignorance or methodological confusion, Re says. Moreover, justices are predisposed to hold fast to their previously expressed views to protect both their professional integrity and their “celebrity brand” and legacy. Majority opinions often incorporate—or even avoid upsetting—a particular justice’s personal precedent in order to win that justice’s vote, he writes.

As a practical matter, personal precedent adds an element of predictability that “facilitates settlements and streamlines litigation efforts.” A consistent dissenter, for example, may help point the way toward clearing up a doctrine’s muddied status quo, he writes.

Re also uses an ironic pre-Dobbs twist to illustrate the ways in which personal precedent can help reinforce a shaky institutional precedent: In Planned Parenthood of Southeast Pennsylvania v. Casey, the constitutional right to abortion was essentially preserved because of personal precedent. For example, the controlling opinion included a string citation of six of Justice Sandra Day O’Connor’s previous opinions, all lending support for a new “undue burden” test for abortion restrictions.

Critics of personal precedent as guiding principle, such as William & Mary law professor Allison Orr Larsen ’04, warn that it turns every confirmation hearing into a zero-sum game that cannot end well.

“The endgame is an even more polarized Supreme Court with very little room for consensus and common ground,” Larsen said in The New York Times piece.

Re acknowledged that perspective but said, “My take is that personal precedent is already here, so we can’t ignore it. And it’s also virtually impossible to get rid of.”

Instead, we might look into our political toolkits to manage its impact.

“Perhaps seeing personal precedent for what it is strengthens the case for court reform—potentially including voluntary judicial term limits,” Re noted, gesturing toward another area of his scholarship.

Re is the Joel B. Piassick Research Professor of Law.

—Melissa Castro Wyatt

Bayefsky’s proposed standards “are meant to limit the influence of merits-based reasoning in the decision to grant an administrative stay,” she writes. “These steps would help to underscore that administrative stays are a docket-management device rather than an occasion for courts to opine on a controversial matter.”

—Fran Slayton ’94

That would “reinforce the principle that Article III courts do not exist to resolve the policy disputes between governments,” they write in their conclusion.

Frost is the John A. Ewald Jr. Research Professor of Law, Woolhandler is the

William

Minor Lile Professor of Law and the Armistead M. Dobie Professor of Law, and Collins is the Joseph M. Hartfield Professor of Law.

—Melissa Castro Wyatt