Supreme Court Norms of Impersonality
33 Constitutional Commentary (2018)
16 Pages Posted: 15 Jun 2018 Last revised: 26 Oct 2018
Date Written: May 29, 2018
In his new book, Settled Versus Right: A Theory of Precedent, Professor Randy Kozel assumes a rare role for law professors; he serves as a helpful collaborator rather than a snarky critic. Professor Kozel seeks a commitment to the impersonal features of Supreme Court decisions and a retreat from individual disputes over interpretive philosophy when it comes to discussion of precedent. His optimism is contagious, and Kozel has made bold strides towards a “second best stare decisis” that can be applied regardless of vast disagreement on the merits. Cynics may remain unpersuaded that nine individual Justices can transcend interpretive disagreements and commit to a communal understanding of a doctrine of precedent. But even for those cynics, Professor Kozel’s work provides a powerful lesson about norms. The Supreme Court is more than just a building across from the Capitol that houses nine individual lawmakers. As a two hundred and thirty-year-old institution with a rich tradition of its own, the Court has developed a set of distinct norms over time. From “the rule of four” (not needing a majority to grant cert) to the taboo of vote-trading, to the use of a plural noun when referring to past decisions, to the expectation that every word change in a draft opinion merits a re-circulation, the Court has developed its own norms of impersonality—norms that emphasize the “we” over the “I’s.” This Review will explore Supreme Court norms that both help and hinder Professor Kozel’s aspiration for impersonality at the Court. I will reiterate my old complaint about “self stare decisis”—the habit of reiterating a dissenting view each time an issue presents itself again; and I will offer a new norm when it comes to discussion of precedent. Even if the Justices can’t agree on whether a precedent is worthy of overruling, it seems a modest request to suggest such discussions happen at the outset, perhaps in their own initially circulated opinion or dedicated time at Conference. Bifurcating the discussion in this way (separating the discussion of precedent from the discussion of the merits) will help abate the temptation to gloss over the precedential discussion in order to get to the particulars of the case at hand. My hope is that norm changes such as these will further Professor Kozel’s laudable goal of changing “attitudes” and will capture many of the benefits he articulates that arise from demanding a common set of playing rules for nine individual decisionmakers.
Keywords: Supreme Court, Precendent, Norms, Impersonality, Justices, Stare Decisions
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