The Irrepressibility of Precedent

Abstract

In this Article, I discuss three important ways in which precedent still matters in constitutional law in spite of some empirical data and normative critiques suggesting otherwise. First, I describe how precedent shapes the Court's institutional practices and secures basic stability in constitutional adjudication. In fact, the Court not only leaves the overwhelming bulk of its prior decisions intact, but also steadfastly employs precedent as the most popular basis for its decisions and mode of argumentation. Second, I describe how the Justices have employed precedents in particular cases during the first two Terms of the Roberts Court. Although the Roberts Court has not yet formally overruled any constitutional precedents, its track record thus far demonstrates the extremely weak constraining force of particular decisions on the path of the Court's constitutional decision making. Third, I suggest a normative defense of precedent in response to the critique that precedent provides a weak if not illegitimate basis for the Court's constitutional decision making. Precedent provides an independent, neutral source on which Justices may constrain or avoid reliance on their personal or political preferences.