[Ilya Somin (guest-blogging), April 11, 2006 at 11:35pm] Trackbacks
When Should the Supreme Court Follow its Own Mistaken Precedents?

In this article, law professor Robert Nagel makes a strong argument that the Supreme Court's rhetoric (if not its practice) gives too much respect to its own precedent and not enough to the Constitution that the precedents are supposed to be expounding. After all, Judges swear an oath to uphold the Constitution, not the Court's prior precedents. At least in principle, when the precedent conflicts with the Constitution, it is the precedent which should give way.

I agree with many of Nagel's points. But like most other commentators, Nagel does not give a fully satisfactory account of when a flawed precedent should be maintained because reversing it would be too disruptive of settled expectations ("reliance interests," as lawyers call it). Nagel argues that the expectations created by Roe v. Wade are not enough to justify keeping it in place. But he fails to articulate any kind of general theory of how strong reliance on a flawed precedent has to be in order to justify not overruling it.

In at least some instances, we may have to make peace with precedents that are wrong. For example, there is a strong originalist argument that the Court made a mistake in holding that Congress has the power to issue paper money in the Legal Tender Cases of the 1870s. Article I of the Constitution gives Congress the power to "coin Money," and it is highly likely that the Framers and ratifiers really did mean COIN, since hyperinflation caused by excessive issuing of paper money was one of the principal economic problems that the Constitution was intended to solve. In Federalist 10, James Madison denounced "a rage for paper money" as one of the types of abuses that the Constitution would prevent (though Federalist 10 focuses on nontextual constraints). Federalist 44 refers to "the pestilent effects of paper money on the necessary confidence between man and man." Madison's Notes on the Constitutional Convention seem to conclude that Congress lacked the power to "mak[e] . . . bills a tender either for public or private debts."

Yet even if paper money is unconstitutional as a matter of text and original meaning, a Supreme Court decision banning paper money today might have such catastrophic economic effects that even justices who thought that was the right outcome as an original matter would be highly unlikely to overrule precedent. If they did, the likely result would be a pitched political battle with Congress and the president that the Court would almost certainly lose.

While it might be easy to agree that the Legal Tender Cases should not be overruled, it is much harder to develop a coherent theory of reliance interests in constitutional law. The lack of such a theory makes it easier for partisans of all stripes to claim that their preferred precedents should be untouchable because they protect imajor reliance interests, while arguing that the other side's are ripe for overruling.