Personal Precedent at the Supreme Court

Abstract

Personal precedent is a judge’s presumptive adherence to her own previously expressed views of the law. This essay shows that personal precedent both does and should play a central role in Supreme Court practice. For example, personal precedent simultaneously underlies and cabins institutional precedent—as vividly illustrated in the now-pending abortion case Dobbs v. Jackson Women’s Health. Further, the justices’ use of personal precedent is largely inevitable, as well as beneficial in many cases. Still, the justices should manage or reform their use of personal precedent, including by limiting its creation. Finally, and most fundamentally, personal precedent challenges conventional theories of legality. Though typically excluded from the law, personal precedent may actually be its building block.

Keywords: precedent, stare decisis, positivism, Supreme Court, judicial decisionmaking