by Neil Gorsuch
THE CON ARGUMENTS
To be sure, our system of precedent, perhaps like anything else constructed by imperfect humans, guarantees costs along with its benefits. One we’ve already seen: Deference to precedent can wind up ensconcing not just wise decisions but wrong ones. In the name of obedience to precedent, judges may pass judgment without giving much thought to the merits of the case at hand, inviting a sort of “judicial somnambulism.”
Justice Holmes expressed this risk shortly before becoming a judge: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” But eighteen years later, as chief justice of Massachusetts, he seemed more cautious: “[P]recisely because I believe that the world would be just as well off if it lived under laws that differed from ours in many ways, and because I believe that the claim of our especial code to respect is simply that it exists, that it is the one to which we have become accustomed, and not that it represents an eternal principle, I am slow to consent to overruling a precedent.”
Respect for precedent may also create abiding injustice as the cost of ensuring consistency and predictability more systemically. In the words of Jerome Frank, courts may “feel obligated to consecrate their former blunders.” A precedent may yield not just wrong results (as with the baseball holding) but gravely wrong ones (as with Dred Scott—the infamous pre–Civil War case in which the U.S. Supreme Court held that no black person, enslaved or free, could be a citizen of the United States, nor of any individual state, and therefore had no standing in federal court). While unjust judicial decisions can be overruled, that change can come slowly—very slowly. Radical system-wide reform by way of legislation can be more difficult in an incremental case-or-controversy process respectful of precedent.
One can question, too, how well precedent ever fulfills the goals it is said to serve. Take, for example, the goal of predictability. Looking up precedents has never been easy or cheap. At one time, precedents were accessible only in expensive and rare law books. Now precedents are ubiquitous—easy to produce and store, thanks to the computer. Yet that very ubiquity can make it more difficult than ever to know what the controlling law is—a sort of information overload. The accelerating speed with which cases have filled the Federal Reporter illustrates the problem. The Reporter’s first series, which contained but 300 volumes, spanned 1880 to mid-1924—meaning that on average it covered a year’s worth of opinions in just shy of 7 volumes. The second series contained 999 volumes covering mid-1924 to mid-1993—more than 14 volumes a year. The current third series has taken well over 600 volumes to cover just the time between mid-1993 and the present day—a pace approaching 30 volumes a year. Lawyers have a hard time staying abreast of developments even in specialized fields. Nonlawyers have little chance.
But weighty as such criticisms are, our system doesn’t lack counterbalances to them. The American judiciary doesn’t treat precedent as an ironclad edict. Not every decision offered by one court binds every other court. By dividing our courts into parallel systems (federal and state) and even limiting precedential effect horizontally within those parallel systems (federal circuits, for example, generally aren’t bound by one another’s decisions), we have achieved a significant degree of flexibility in the system. Nor, as we have seen, is every word in every judicial opinion binding even on those courts generally obliged to follow the source’s dictates. And to be sure, most courts have the power to overrule their own precedents.
Like most other social arrangements, a system of precedent can hope to achieve only some roughly workable accommodation between competing goals—in our case, between interests like predictability and equality on the one hand, and adaptability and individual justice on the other. It has been well said by Neil Duxbury that “[t]he doctrine of precedent entails both constraint and creativity. If precedents bound absolutely,…judges would have very little capacity and opportunity to develop the common law; but if judges could ignore precedents completely, the doctrine would not exist in any meaningful sense.” Unsurprisingly, even as harsh a critic of the doctrine of precedent as Jerome Frank conceded that “no sensible person suggests that stare decisis be abandoned.”
Henson v. Santander
We move now to some excerpts from judicial opinions. This one discusses the temptation to allow policy pleas to prevail over a statute’s language—and the importance of resisting it. It comes from the first opinion I authored as a Supreme Court justice. A new justice’s first assignment isn’t usually a blockbuster and this one surely addressed an obscure question. Everyone agreed that in the Fair Debt Collection Practices Act Congress didn’t regulate loan originators who sought to collect debts owed to them. Instead, Congress sought to regulate the sometimes abusive practices of third-party debt collection agencies hired by loan originators. But in the years after the act’s adoption some loan originators had begun selling debts, and these new owners had begun trying to collect those loans for their own account. That development raised this question: Does the statute treat loan purchasers like loan originators or like third-party debt collectors? In the end, the Court unanimously agreed that loan purchasers do not meet the statute’s written test for “debt collectors.” Anticipating the Court would reach that conclusion, the petitioners sought to persuade the Court to rule for them anyway based not on the law’s terms but on policy concerns. We refused and this excerpt explains why.
Faced with obstacles in the text and structure of the Fair Debt Collection Practices Act, petitioners ask us to move quickly on to policy. Indeed, from the beginning that is the field on which they seem most eager to pitch battle. Petitioners assert that Congress passed the Act in large measure to add new incentives for independent debt collectors to treat consumers well. In their view, Congress excluded loan originators from the Act’s demands because it thought they already faced sufficient economic and legal incentives to good behavior. But, on petitioners’ account, Congress never had the chance to consider what should be done about those in the business of purchasing defaulted debt. That’s because, petitioners tell us, the “advent” of the market for defaulted debt represents “ ‘one of the most significant changes’ ” to the debt market generally since the Act’s passage in 1977. Had Congress known this new industry would blossom, they say, it surely would have judged defaulted debt purchasers more like (and in need of the same special rules as) independent debt collectors. Indeed, petitioners contend that no other result would be consistent with the overarching congressional goal of deterring untoward debt collection practices.
All this seems to us quite a lot of speculation. And while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. Indeed, it is quite mistaken to assume, as petitioners would have us, that “whatever” might appear to “further[] the statute’s primary objective must be the law.” Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known “pursues its [stated] purpose[] at all costs.” For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead “that [the] legislature says…what it means and means…what it says.”
Even taken on its own terms, too, the speculation petitioners urge upon us is far from unassailable. After all, is it really impossible to imagine that reasonable legislators might contend both ways on the question whether defaulted debt purchasers should be treated more like loan originators than independent debt collection agencies? About whether other existing incentiv
es (in the form of common law duties, other statutory and regulatory obligations, economic incentives, or otherwise) suffice to deter debt purchasers from engaging in certain undesirable collection activities? Couldn’t a reasonable legislator endorsing the Act as written wonder whether a large financial institution that purchases defaulted debt is any more or less likely to engage in abusive conduct than another large financial institution that originates that debt? Especially where (as here) the institution says that its primary business is loan origination and not the purchase of defaulted debt? We do not profess sure answers to any of these questions, but observe only that the parties and their amici manage to present many and colorable arguments both ways on them all, a fact that suggests to us for certain but one thing: that these are matters for Congress, not this Court, to resolve.
In the end, reasonable people can disagree with how Congress balanced the various social costs and benefits in this area. We have no difficulty imagining, for example, a statute that applies the Act’s demands to anyone collecting any debts, anyone collecting debts originated by another, or to some other class of persons still. Neither do we doubt that the evolution of the debt collection business might invite reasonable disagreements on whether Congress should reenter the field and alter the judgments it made in the past. After all, it’s hardly unknown for new business models to emerge in response to regulation, and for regulation in turn to address new business models. Constant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world. But neither should the proper role of the judiciary in that process—to apply, not amend, the work of the people’s representatives.
A.M. v. Holmes
As much as I am sure they didn’t like it, my Tenth Circuit colleagues thought the law allowed the unlikely arrest in this case. I dissented because I believed precedent fairly warned police that their conduct was unlawful. At the same time, though, I hoped to make clear that I admired my colleagues for their willingness to follow the law faithfully where they thought it led rather than take the all-too-tempting path of rewriting the law themselves.
If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe. But then again, maybe that’s too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal’s office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that’s so. Respectfully, I remain unpersuaded.
The simple fact is the New Mexico Court of Appeals long ago alerted law enforcement that the statutory language on which the officer relied for the arrest in this case does not criminalize “noise[s] or diversion[s]” that merely “disturb the peace or good order” of individual classes. Instead, the court explained, the law requires “a more substantial, more physical invasion” of the school’s operations—proof that the student more “substantially interfered” with the “actual functioning” of the school. What’s more, other state courts have interpreted similar statutes similarly. They’ve sustained criminal convictions for students who created substantial disorders across an entire school. But they’ve also refused to hold students criminally liable for classroom antics that “momentarily divert[ed] attention from the planned classroom activity” and “require[d] some intervention by a school official.” Even when the antics required a teacher to leave her class for several minutes, or otherwise “divert[ed] the teacher or the principal from other duties for a time.” Respectfully, I would have thought this authority sufficient to alert any reasonable officer in this case that arresting a now compliant class clown for burping was going a step too far.
As Charles Dickens once wrote, often enough the law can be “a ass—a idiot”—and there is little we judges can do about it, for it is (or should be) emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels. So it is I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands—and in that I see the best of our profession and much to admire. It’s only that, in this particular case, I don’t believe the law happens to be quite as much of a ass as they do. I respectfully dissent.
Direct Marketing Association v. Brohl
This concurrence illustrates the struggle a lower court judge can sometimes face in seeking to apply precedent. The case involved the intersection of two forces. First, a Colorado law that sought to collect taxes from in-state citizens who purchased goods from out-of-state Internet retailers. Second, a Supreme Court precedent that forbade states from directly taxing out-of-state retailers but that had been undermined itself by later Supreme Court teachings. How should a judge navigate these tricky waters? (Later, during my first full term on the Supreme Court, it resolved the confusion by formally overruling its precedent in South Dakota v. Wayfair.)
In our legal order past decisions often control the outcome of present disputes. Some criticize this feature of our law, suggesting that respect for judicial precedent invests dead judges with too much authority over living citizens. They contend, too, that it invites current judges to avoid thinking for themselves and to succumb instead in “judicial somnambulism.” But in our legal order judges distinguish themselves from politicians by the oath they take to apply the law as it is, not to reshape the law as they wish it to be. And in taking the judicial oath judges do not necessarily profess a conviction that every precedent is rightly decided, but they must and do profess a conviction that a justice system that failed to attach power to precedent, one that surrendered similarly situated persons to wildly different fates at the hands of unconstrained judges, would hardly be worthy of the name.
At the center of this appeal is a claim about the power of precedent. In fact, the whole field in which we are asked to operate today—dormant commerce clause doctrine—might be said to be an artifact of judicial precedent. After all, the Commerce Clause is found in Article I of the Constitution and it grants Congress the authority to adopt laws regulating interstate commerce. Meanwhile, in dormant commerce clause cases Article III courts have claimed the (anything but dormant) power to strike down some state laws even in the absence of congressional direction. And the plaintiffs’ attempt in this case to topple Colorado’s statutory scheme depends almost entirely on a claim about the power of a single dormant commerce clause decision: Quill Corp. v. North Dakota.
Everyone before us acknowledges that Quill is among the most contentious of all dormant commerce clause cases. Everyone before us acknowledges that it’s been the target of criticism over many years from many quarters, including from many members of the Supreme Court. But, the plaintiffs remind us, Quill remains on the books and we are duty-bound to follow it. And about that much the plaintiffs are surely right: we are obliged to follow Quill out of fidelity to our system of precedent whether or not we profess confidence in the decision itself.
With that much plain enough, the question remains what exactly Quill requires of us. Later (reading) courts faced with guidance from earlier (writing) courts sometimes face questions how best to interpret that guidance. And the parties before us today offer wildly different accounts of Quill. Most narrowly, everyone agrees that Quill’s holding forbids states from imposing sales and use tax collection duties on firms that lack a physical presence in-state. And everyone agrees that Colorado’s law doesn’t quite go that far. While Colorado requires in-state brick-and-mortar firms to collect sales and use taxes, it asks out-of-state mail order and internet firms only to supply reports designed to enable the state itself to collect the taxes in question. Indeed, Colorado suggests that its
statutory scheme carefully and consciously stops (just) short of doing what Quill’s holding forbids.
But as the plaintiffs note, that is hardly the end of it. Our obligation to precedent obliges us to abide not only a prior case’s holding but also to afford careful consideration to the reasoning (the “ratio decidendi”) on which it rests. And surely our respect for a prior decision’s reasoning must be at its zenith when the decision emanates from the Supreme Court. Indeed, our court has said that it will usually defer even to the dicta (not just the ratio) found in Supreme Court decisions. And building on this insight the plaintiffs argue that respect for Quill’s ratio, if not its holding, requires us to strike down Colorado’s law. After all, the plaintiffs note, Colorado’s regulatory scheme seeks to facilitate the collection of sales and use taxes by requiring out-of-state firms to satisfy various notice and reporting obligations—burdens comparable in their severity to those associated with collecting the underlying taxes themselves.
It’s a reasonable argument, but like my colleagues I believe there’s a reason it’s wrong. The reason lies in the exceptional narrowness of Quill’s ratio. If the Court in Quill had suggested that state laws commanding out-of-state firms to collect sales and use taxes violated dormant commerce clause doctrine because they are too burdensome, then I would agree that we would be obliged to ask whether Colorado’s law imposes a comparable burden. But Quill’s ratio doesn’t sound in the comparability of burdens—it is instead and itself all about the respect due precedent, about the doctrine of stare decisis and the respect due a still earlier decision.
