Professor Kozel Examines How Precedent Can Bring Consistency to the Court

With the country focused on selecting its next president and on who will replace U.S. Supreme Court Justice Antonin Scalia, Notre Dame Law School Professor Randy Kozel’s research considers how the Court can establish a continuing identity even as its membership changes.

One of the key issues the Supreme Court regularly encounters is whether to follow the decisions it made before — in other words, to follow precedent — or to overturn those decisions. The role of precedent has been at the center of some of the Court’s most significant rulings, on issues including the regulation of abortion, the procedural protections afforded to suspected criminals, and the rights of corporations to promote and oppose candidates for political office.

Kozel thinks that while there are exceptional situations in which overrulings are warranted, ensuring a meaningful role for precedent promotes the stability and impersonality of constitutional law.

“The Constitution should be more than the views of a few Supreme Court Justices — even very smart and principled Justices — who happen to occupy the bench at any given time,” he said. “Instead, I defend a vision of the Supreme Court as maintaining a relatively consistent identity over time. A commitment to precedent promotes that vision.”

The basic question, Kozel said, is straightforward: Is it better for the law to be settled, or to be right? But he said that different judges are likely to approach the question in very different ways. That tendency creates the need for rules of precedent that can bring together judges of diverse interpretive philosophies.

Kozel notes that the Supreme Court’s existing rules of precedent might operate well in a world of widespread agreement about the ends and means of constitutional interpretation. But in a world characterized by deep disagreement, the rules of precedent should be reconsidered: “At its best, deference to precedent should be a way of overcoming interpretive disagreements, not reinforcing them.”

Kozel has begun developing these ideas in a series of articles, and he draws them together in a forthcoming book — titled “Settled Versus Right: A Theory of Precedent” — that will be published by Cambridge University Press in 2017. He said he hopes to take a step forward in showing how precedent can contribute to the ideal of the Supreme Court as “an institution that is something different, and something greater, than its individual members.”