Document Type

Book Chapter

Publication Date

2014

Keywords

public-rights model, private-rights model, justiciability

Comments

The final published version of this chapter will be published in Precedent in the United States Supreme Court, ed. by Christopher J. Peters. New York, Springer, 2014. (Ius Gentium: Comparative Perspectives on Law and Justice).

Abstract

This chapter advances a simple thesis that runs counter to much public-law scholarship. Holding all else constant, the more difficult, or costly, constitutional rulings are to obtain, the more durable the resulting precedent; conversely, the easier, or cheaper, such rulings are to obtain, the less durable the resulting precedent. Most public-law scholarship implicitly rests on the opposite premise that the relative ease or difficulty of obtaining constitutional rulings should correlate positively, not negatively, with the relative importance or unimportance of the asserted right. Within a public-rights adjudicatory model, important constitutional rights justify relaxing traditional constraints on constitutional decisionmaking, including ripeness, mootness, and, most notably, standing. Conversely, within a private-rights adjudicatory model, judicial rulings, however important, are legitimated by the need to resolve actual cases or controversies presumptively arising from circumstances beyond the claimant’s control.

The public-rights model produces an unintended consequence for those seeking durable constitutional precedent. To the extent that the timing of constitutional litigation is driven by the happenstance of ideological sympathies of deciding jurists, the normative justification for affording the resulting precedent durable status is compromised once those conditions change, favoring the other side. By contrast, the private-rights adjudicatory model makes constitutional precedent more costly to obtain on all sides, thereby enhancing the normative foundation for affording precedent durable status. The analysis holds important implications for several notable bodies of law, including the historical status of Brown v. Board of Education; the stare decisis analysis in the jointly authored plurality opinion in the 1992 decision, Planned Parenthood of Southeastern Pennsylvania v. Casey; and Supreme Court doctrine concerning agency deference rules.

Disciplines

Constitutional Law

Recommended Citation

Christopher J. Peters, ed. Precedent in the United States Supreme Court. New York, Springer, 2014. (Ius Gentium: Comparative Perspectives on Law and Justice).

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