Tsai on Supreme Court Precedent and the Politics of Reputation @robertltsai

Robert L. Tsai, Temple University School of Law, is publishing Supreme Court Precedent and the Politics of Repudiation in Law’s Infamy (Austin Sarat, ed., University of Massachusetts Press, 2020) (forthcoming). Here is the abstract.

This is an invited essay that will appear in a book titled “Law’s Infamy,” edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. Likewise, the knowledge that he might wind up on the wrong side of history in part explains the anguished quality of Justice Felix Frankfurter’s dissent in the coerced flag salute case, West Virginia State Board of Education v. Barnette, for he had not merely lost the argument over what a post-war liberal order should look like, but also saw the consensus represented in his earlier opinion on the issue collapse as his colleagues abandoned him for Robert Jackson’s rights-centered vision of justice.

But what exactly renders a particular legal outcome, which surely begins as a good-faith effort to do the right thing, a despised precedent over time? Some judicial rulings are infamous because they are one day cast aside with great fanfare, as Bowers v. Hardwick was by Justice Anthony Kennedy in Lawrence v. Texas or the Dred Scott case was through consistent denunciation by abolitionists and a dramatic defeat for the Slave Power during the Civil War. But other precedents are treated disdainfully through a more nuanced process of shunning or erosion, so that they remain formally alive but shamble about, a vestige of their former selves—Korematsu v. United States, Roe v. Wade, and Miranda v. Arizona might fall into this category. This is true even though there may have been efforts by judges to rescue some aspect of each of these decisions. Whether renounced openly or surreptitiously, each of these precedents has been deeply marked by public condemnation.

This essay investigates the politics of repudiation—the socio-legal dynamics by which losers to a contest over the meaning of the U.S. Constitution seek to castigate and de-legitimate a controversial outcome. It will ask what actions can spur the sense of moral outrage with a judicial ruling, and what components are necessary to transform a precedent into an exemplar of public regret. The politics of repudiation begins with the notion that every judicial ruling is a first draft, a sketch of legal and political values. Judges’ words are only fragments, composed by a single collection of influential individuals reading a legal text for a particular moment in time. What a judicial ruling means in the social world depends on what it becomes. Along these lines, the command to obey that is intrinsic to every ruling is satisfied through compliance by those who are immediate parties to the controversy; no one else is obliged to endorse the constitutional vision sketched by judges who presided over that dispute. The republican and federalist design features of our constitutional order therefore join with the necessary cultural processes upon which every legal system must depend to foster a broad range of efforts to either entrench or contest a particular vision of law.

What matters more than the ideas contained in a judicial opinion, then, is what average citizens and elites do with that legal decision once it reenters the stream of democratic discourse and, if they disagree with it, what steps they take to inscribe a very different narrative about that decision in the public imagination. Much of this work of public repudiation is done through unglamorous politics: activism of civic groups and church organizations that educates citizens and the enactment of local policies, state laws, and other texts through which the people turn a legal ruling into an object of obloquy. National party dynamics can play a significant role by sharpening and broadening the politics of repudiation. For instance, by making opposition to Roe a central tenet of the party platform and political identity, the Republican party helped make Roe reviled among a generation of conservative lawyers who now hold a majority of seats on the Supreme Court. These efforts have put conservatives on the cusp of codifying a final victory should the Court overrule that decision.

Download the essay from SSRN at the link.