When at Times the Mob Is Swayed

by Burt Neuborne

  To understand why I can’t promise, only hope, we need to survey the idea of precedent and the binding rule of law at the heart of the purple Constitution’s DNA. That survey must start with the question of whether we ever live under a judicially enforced rule of law. Critics have argued, from both the left and the right, that the very idea of a rule of law is a myth. Given the limitations of language and logic and the power of politics, thoughtful critics argue that judges can almost always decide any case any way they wish, and then disguise the outcome as “compelled” by legal commands from legislatures or past judges.

  If that critique is true, we live not under a rule of law but under the rule of judges, where the purple Constitution—and every other legal document—is just an excuse for covert judicial lawmaking. In my experience, though, critics who focus solely on important areas where good lawyering is likely to fail to generate a single clearly preferable legal result seriously underestimate how often good lawyers and principled judges do succeed in operating under the apolitical rule of law.

  I have found that most of the time, the law speaks relatively clearly to competent lawyers and principled judges. If I took ten excellent lawyers and placed them behind a veil of ignorance, eliminating the usual client-driven or personal incentives for lawyers to seek to twist the law in one direction or another, I would be willing to bet that in cases reaching across the full spectrum of the law, at least eight and perhaps all ten, using the analytic skills they learned in law school, would reach a consensus about what the law expects in a given setting.

  Think of the legal system as a huge pyramid. The lawyer’s office sits on the bottom rung. It’s a place where the law usually sends relatively clear signals that are easy enough to decipher if a skilled, principled lawyer takes the time to study them. When a client consults a competent lawyer before she makes a will, buys a house, or invests money in a business, the lawyer is generally able to provide useful guidance, because the law is speaking relatively clearly to her. Not always, of course. But most of the time.

  Don’t be confused by that fact that it is almost always possible for an agile lawyer to argue that the law is sending more than one signal. That’s just legal smoke, usually aimed at advancing a client’s interests or the lawyer’s personal interests. A good, self-aware lawyer usually knows, though, when she is acting as the law’s oracle and when she’s blowing smoke. When a client has already behaved in a certain way by the time he arrives at his lawyer’s office, under our adversary system of justice it is the lawyer’s duty as a zealous advocate to blow as much legal smoke as possible—to try to twist the law into a pretzel to get the client off. At that point, it’s usually a competent judge or skilled opposing counsel who brings a dose of reality to the proceedings by cutting through the implausible legal smoke. That’s why competent judges are so important. It’s also why ensuring that both sides have competent counsel is so important. Without a competent judge and competent adversary counsel, the rule of law is helpless to defend itself from legal smoke.

  When, however, a lawyer is advising a client before the client acts, the lawyer plays a vastly different role. Before a client has acted, an ethical lawyer should function as the law’s oracle, not the client’s mouthpiece. The temporal distinction is crucial. Before the client has acted, an ethical lawyer’s function is to educate clients about the behavior that the law expects. After the client has acted, the lawyer’s duty is to get the client off by confusing the law’s signals, if necessary. In both settings, though, good lawyers usually know what the law is trying to say. Fortunately for the rule of law, so do good judges.

  So in the wake of 9/11, when President George W. Bush’s lawyers told him, before he acted, that torturing prisoners didn’t violate international law, they were confusing their roles as advisors and advocates. If the president had already acted, a good lawyer-advocate would have been duty bound to advance any legal argument that might have shielded the president from legal sanction, even an argument that the advocate would reject if she were the judge. That’s what Rudy Giuliani is trying to do for an embattled Donald Trump.

  Before President Bush acted, though, the lawyer-advisor’s duty was to tell him that international law is relatively clear: torture is unlawful anywhere, anytime. It was not to assure him that some loophole might be found if he ignored the law’s relatively clear signals.

  Ultimately, of course, it’s the client’s call. All a lawyer can do is explain what behavior the law appears to expect, assess the client’s level of risk if she decides to act differently, and decline to participate in the commission of a crime or a fraud. Make no mistake, though—as I’ve said, a good lawyer usually knows what the law is trying to say.

  Now, move up one level on the legal pyramid from the lawyer’s office to the trial court, where opposing parties are in formal disagreement, but not necessarily over what the law says. In fact, most of the time in the trial court, the governing law is relatively clear to a competent judge, despite the legal smoke. The parties’ real disagreement is very often over the facts. That’s where excellent trial lawyers really earn their keep. Persuading a judge or jury to accept a client’s version of the facts is a skill of a high order (worth a book of its own, but not this one). We’re focusing on the governing law in the trial courts, which is usually clear enough to an able, intellectually honest trial judge. Not always. But most of the time.

  Another layer up the legal pyramid are the intermediate appeals courts. Since appellate courts in our system usually can’t challenge the factual findings of lower courts, most appeals center on disputes over what the law is. Even then, I’ve found that if I can avoid viewing the issue through an advocate’s glasses, a combination of persuasive text, well-reasoned precedent, and shared values usually points the way to a legally preferable result. That’s why the vast bulk of appeals to three-judge federal appeals panels are resolved by unanimous vote.

  Finally, move to the highest appellate court, the apex of the pyramid—the Supreme Court. That’s where the rarefied air is richest in legal ties caused by ambiguous text, conflicting values, and nonexistent, ambiguous, or conflicting legal signals. When, as with the United States Supreme Court, the highest court can pick and choose the cases it hears, the percentage of legal ties is at its highest because one criterion for accepting a case is to resolve disagreements in the lower courts over the correct legal outcome. But even then, at the height of potential legal uncertainty, I have found that most of the seventy to eighty cases heard each term in the modern Supreme Court can be resolved on the basis of strong legal signals, without resort to the justices’ values. It’s why so many Supreme Court decisions are either unanimous or decided by lopsided majorities.

  Sometimes, of course, the legal signals just don’t work. Incompetent lawyers may do a lousy job of decoding them and presenting them to clients and judges. Shady clients may ignore them. Ambitious lawyers may garble legal signals in the hope of pleasing a powerful client. A judge of limited ability may be unable to understand the legal signals, even when lawyers do a competent job of decoding them. Occasionally a judge’s values may be so intensely felt that they blot out the legal signals. Relatively rarely, judges can see the legal signals just fine but, driven by values, self-consciously decide to ignore them.

  In a surprisingly high percentage of Supreme Court cases, the signals work just fine, guiding the justices to a legally preferred, value-neutral result. Each term, however, there are at least several important cases in the Supreme Court, usually involving constitutional questions, where conflicting or weak legal signals result in formal legal ties that are broken by characteristically partisan values. As we’ve seen, in such cases Republican justices have tended to favor legal arguments advancing individual autonomy, while Democratic justices will more often be persuaded by an equality-enhancing legal argument.

  Even though such cases are crucially important and deservedly get most of the public and academic attention, value-laden tie cases are black swans, sur
rounded by the great mass of cases where good judges and good lawyers work together to deliver the apolitical rule of law. It’s a mistake to pretend that the black swans do not exist. But it’s also a mistake to treat the Supreme Court’s black swans as if they were the entire flock.

  If all we had were black swans, our entire legal system would be a lie. Killing all the lawyers wouldn’t matter much. But please don’t—not yet, anyway—because it’s the lawyers, with all their posturing and infuriating antics, who provide able, principled judges with the raw material for the purple Constitution’s rule of law in the many, many cases where it is possible to aspire to it. How do they do it?

  In the beginning, there’s the purple Constitution’s naked text. If all we had was that text, though, there wouldn’t be much of a purple Constitution. Given the inherent ambiguity of virtually every word in the Constitution, almost every constitutional case would turn not on a genuine command from the text but on the judge’s values. Much of the late Justice Antonin Scalia’s formidable legal career was spent trying to increase the number of cases governed by a genuine command from the purple Constitution’s text by deploying his theory of originalism. As we’ve seen, though, originalism, in practice, fails to point the way to a single, correct way of reading the Constitution’s necessarily ambiguous text.

  The failure of originalism to generate single right answers in most settings does not, however, render constitutional text wholly incapable of providing an intellectually honest judge with persuasive apolitical guidance. When guidance can’t be found in the naked text, sometimes it can be found in context and structure. Words in a complex legal document such as the Constitution are rarely free radicals existing in splendid isolation from one another. When the entire text is read holistically, relationships between and among the individual words become visible, potentially infusing a single word with enriched persuasive meaning. Justice David Souter’s opinions during his nineteen years on the Supreme Court often used context and respect for structure as a way of giving the naked text a preferred meaning. Souter’s work demonstrates that it is possible to take text seriously without being sucked into the originalist vortex.

  In the past, I’ve argued that the forty-five words of the First Amendment when read as a whole reveal the careful organization of its ideas—starting with freedom of conscience, moving outward to freedoms of speech, press, and assembly, and culminating in the right to petition for redress of grievance. Read that way, the First Amendment describes the half-life of a democratic idea, born in the conscience of a free citizen and shared with the political community in ever-widening concentric circles of speech, press, and assembly, culminating in formal petition for adoption by the polity. Such a democracy-enhancing document, I’ve argued, cannot plausibly be read to forbid the campaign financing reform needed to save democracy.

  The trouble with such holistic readings and flights of poetic fancy, though, is that they often don’t deliver a single right answer, just a plausible one. In my experience, the holistic persuasion meter usually stops at “plausible.” All that does is give a judge another potential outcome. Sometimes, of course, that’s all a judge wants—a plausible excuse for advancing her values. Every once in a while, though, a really good lawyer with the right raw material can hit the apolitical jackpot by cloaking the naked text in an elegantly persuasive coat of underlying purpose and structural context capable of persuading a principled judge without resort to values.

  More often, instead of using the text, skilled lawyers try to persuade a judge to follow an apolitical trail to a preferred legal outcome by invoking the principle of stare decisis, the fancy Latin term for respecting judicial precedent. In lawyer-speak, that’s the unwritten rule that directs a British or American judge (but not judges in France, Germany, or other civil-law countries) to treat prior judicial decisions concerning the same (or an analogous) legal question as binding, without considering whether the earlier case was correctly decided.

  Why on earth, you may ask, would we want to saddle our judges with a duty to recycle used judicial decisions, without even considering whether they are right or wrong? Most European lawyers and judges think we’re nuts. In their legal world, judges pay respectful attention to earlier decisions but follow them only when they think those cases have been rightly decided.

  Where does our commitment to stare decisis come from? How strong is it? And can it really protect us from Trump?

  Our deep, if unwritten, commitment to following judicial precedent is part human nature, part thoughtful attempt to make law predictable, part concern for equal treatment, and part crafty, self-interested judicial behavior. Let’s look at each.

  There is something in human nature that calls us to respect and repeat what we’ve already done. Occasionally the urge to respect the past morphs into tradition, habit, even obsession. Often the urge is recycled as superstition. Sometimes it’s revered as experiential learning.

  Imagine, once upon a time, that our distant ancestors skipped a meal the night before a particularly successful hunt. If I were leader of the pack, I’d associate skipped meals with successful hunts. I’d insist that all future hunters repeat the ritual fast. If the hunt failed, anyone who hadn’t followed the ritual would be on the hook.

  British and American judges venerate past practice just as intensely, maybe more so. Like fasting before the hunt, respect for precedent can become an obsession. Until 1956, for example, it was the law in Great Britain that once the Law Lords (Britain’s highest court) had decided a legal issue, the decision became embedded in precedential concrete for all time. Not even later Law Lords themselves could undo it. Only Parliament could fix a broken precedent.

  In our current system, following judicial precedent is merely habitual. British and American judges are expected to defer to past decisions; but, like breaking the smoking habit, if the judge can be persuaded that the past decision was wrong enough and its consequences harmful enough, a binding precedent can be judicially overruled and replaced. The Supreme Court did it in 2018 when it overturned a 1977 case that had permitted public employee unions to charge “agency fees” to nonmembers to cover the cost of providing collective bargaining services. Five Republican justices ruled that requiring dissenting public employees to support unions in any form violates the First Amendment. The four Democratic justices dissented.

  Not surprisingly, overruling a past precedent occurs most often in constitutional cases, where it takes the earthquake of a constitutional amendment to correct a judicial mistake. But even then it’s rare. Instead, judges tend to erode a disfavored precedent, leaving the formal shell in place but draining it of much of its force. That’s what’s already happened to Roe v. Wade under forty-five years of a Republican Supreme Court.

  Roe is an extreme case generating almost unparalleled levels of intensely value-driven disagreement, especially from people (including justices) whose deeply held personal beliefs equate abortion with murder. As we’ve seen, in 1973, the justices viewed Roe as a relatively straightforward autonomy case allowing women to control their bodies. Over time, the autonomy issue became complicated by demands to grant a measure of autonomy protection to the fetus. Repeated efforts to overrule Roe have thus far foundered on respect for precedent (no Supreme Court rights-granting precedent has ever been overruled), continuing concern for a woman’s autonomy, and the force of Justice Ginsburg’s equality-based defense of a woman’s right to choose. But Roe remains uniquely vulnerable to being overruled or further eroded by a current Supreme Court majority, many of whom are personally committed to recognizing the autonomy interests of a fetus and are unmoved by legal arguments advancing equality.

  In the vast bulk of settings, though, since American judges, as a matter of training, social convention, self-interest, and received wisdom, are deeply wedded to respecting past precedent even when they disagree with it, rejecting clear precedent is—and will continue to be—relatively rare in the American legal system.

  Such a veneration
of the past isn’t just an atavistic impulse. Respecting precedent is what makes it possible for British and American law to send reliable signals about how people are expected to behave. As a matter of theory, civil-law countries such as France or Germany don’t need binding precedent because they operate under comprehensive statutory codes that are supposed to send clear signals on just about everything. Common-law systems such as ours don’t have comprehensive codes. Indeed, until recently, statutes played a relatively minor role in British and American law. Instead, judges, in deciding cases before them, announced judge-made common-law rules derived from logic and custom that filled in the huge gaps in the statutory world.

  Think about it for a minute. In the absence of a comprehensive statutory code binding on everyone, unless the common-law rule announced by the first judge is deemed binding on future judges, there would be no way to provide a client with firm guidance about how the law expected her to behave.

  “So what?” you might say. “Let the clients believe what they want.” But that can’t be the answer when you are talking about law. Most of the time we think of law as the punishment we impose—or should impose—on someone who has allegedly acted badly. The second Justice Harlan used to call it the “post-event” function of law. It’s what we see on television and in the movies. Perry Mason, Twelve Angry Men—that’s where all the drama is.

  As Justice Harlan reminded us, though, the more important function of law is to act as a great educator before the bad conduct takes place—persuading, cajoling, threatening, deterring, and inducing its audience to behave a certain way. But how can law persuade its audience if the audience can’t predict what it is? Respect for precedent turns the first judge’s decision—right or wrong—into the raw material for an accurate prediction of what the law will be in the future. Thus, respect for binding precedent provides us with a predictable pre-event way to know what the law requires, enabling us stay out of the clutches of post-event law. In our common-law legal system, veneration of past judicial precedent, even when we think it is wrong, is the price we pay for a coherent system of pre-event legal signals.