Suspension and Delegation

A suspension of the writ of habeas corpus empowers the President to indefinitely detain those suspected of endangering the public safety. In other words, it works a temporary suspension of civil liberties. Given the gravity of this power, the Suspension Clause narrowly limits the circumstances in which it may be exercised: the writ may be suspended only in cases of rebellion or invasion and when the public Safety may require it. Congress alone can suspend the writ; the Executive cannot declare himself authorized to detain in violation of civil rights. Despite the traditional emphasis on the importance of exclusive legislative authority over suspension, the statutes that Congress has enacted are in tension with it. Each of the suspension statutes has delegated broad authority to the President, permitting him in almost every case to decide whether, when, where, and for how long to exercise emergency power. Indeed, if all of these prior statutes are constitutional, Congress could today enact a law authorizing the President to suspend the writ in Guantanamo Bay if he decides at some point in the (perhaps distant) future that the constitutional prerequisites are satisfied. Such a broad delegation undermines the structural benefits that allocating the suspension decision to Congress is designed to achieve. This Article explores whether such delegations are constitutionally permissible. It concludes that while the Suspension Clause does not prohibit Congress from giving the President some responsibility for the suspension decision, it does require Congress to decide the most significant constitutional predicates for itself that an invasion or rebellion has occurred and that protecting the public safety may require the exercise of emergency power. Congress made this determination during the Civil War, but it violated the Suspension Clause in every other case by enacting a suspension statute before an invasion or rebellion actually occurred and in some instances, before one was even on the horizon

Precedent and Jurisprudential Disagreement

This Article, a contribution to a symposium on constitutional foundations, maintains that an unappreciated function of stare decisis is that of referee between competing visions of the Constitution. Stare decisis is styled as a doctrine of error-correction, but in controversial cases, error is often a stand-in for disagreement about first principles. In these cases, stare decisis functions less to guide the business of correcting mistakes — a conception that oversimplifies the reality of pluralism on the Court — than to mediate intense disputes about the Court’s role in interpreting the Constitution. Identifying this function of stare decisis offers a different perspective on the values served by the Court’s traditionally weak presumption against overruling constitutional precedent. Insofar as it avoids entrenching particular resolutions to methodological controversies, weak stare decisis reflects respect for pluralism on and off the Court, as well as realism about the likelihood that justices will lightly let go of their deeply held interpretive commitments. At the same time, the weak presumption does not abandon all constraint: placing the burden of justification on justices who would overrule disciplines jurisprudential disagreement lest it become too disruptive. While the ability to overrule comes at some cost to continuity, stare decisis is ill-suited to accomplish much more than this tempering function in the face of continuing disagreement about what the Constitution requires

Introduction

This essay is as an introduction to a symposium on stare decisis and nonjudicial actors. It frames the questions explored in the symposium by pausing to reflect upon the variety of ways in which nonjudicial actors have, over time, registered their disagreement with decisions of the United States Supreme Court. Both public officials and private citizens have battled the Court on any number of occasions since its inception, and historically, they have employed a diverse range of tactics in doing so. They have resisted Supreme Court judgments. They have denied the binding effect of Supreme Court opinions. They have sought to overrule the Court by statute or constitutional amendment. They have sought overruling in the Court itself. They have tried to discipline the Court through jurisdictional limitations or onerous procedural regulation. And they have pressured the Court by appealing to public opinion. Some of these means, like constitutional override of a disfavored opinion, are generally consistent with notion that Supreme Court precedent is the law of the land. Others, like interfering with the enforcement of a Supreme Court judgment, represent a head-on challenge to the Court\u27s authority. This essay describes some notable examples of each of these kinds of protest, noting, along the way, the problems posed by eac

Bon Voyage, My Friend

I met John in the fall of 2000, when he traveled to Washington to recruit new faculty at the annual hiring conference. Although I was not then on the teaching market, John heard that I intended to enter it in a year or two. He invited me to have coffee to discuss my plans, and so began a friendship that spanned nearly twenty years. John wore many hats in the course of our relationship: mentor, colleague, co-author, and treasured friend. Rather than putting his resources into himself, John put them into his family, friends, church, and work. And in each of those contexts, he was fully himself and entirely unselfconscious about who he was. That made him approachable to a wide variety of people. He was as at home with fellow academics as he was with students, with adults as with kids, and with suburban congregations as with the inner-city congregation that he and Lisa attended. John embodied humility. And though he never made himself the center of attention, he became central to our lives anyway. John has now departed on his greatest journey, and those of us left behind miss him deeply

Statutory Stare Decisis in the Courts of Appeals

The Supreme Court has long given its cases interpreting statutes special protection from overruling. Two rationales exist for this practice. One line of thought interprets congressional silence following the Supreme Court\u27s interpretation of a statute as approval of that interpretation. According to this way of thinking, a refusal to overrule statutory precedent is a refusal to veer from an interpretation that Congress has effectively approved. Another line of thought emphasizes that statutory interpretation inevitably involves policymaking, and that policymaking is an aspect of legislative, rather than judicial, power. According to this second way of thinking, the Supreme Court should refuse to revisit its statutory interpretations as a means of encouraging Congress (and other interested parties) to use the democratic rather than the judicial process to resolve the policy questions that lie at the heart of interpretive disputes. A robust literature exists debating the wisdom of the Supreme Court\u27s statutory stare decisis doctrine. That robust literature, however, has wholly overlooked a curious aspect of super-strong statutory stare decisis: the courts of appeals have adopted it too. Scholars of statutory interpretation have not noticed the appearance of this doctrine in the lower courts, and the logic of its presence there is not immediately apparent. In this Article, I explore whether statutory stare decisis is an example of an interpretive practice in which the Supreme Court and the lower courts should diverge. I argue that in the courts of appeals, as in the Supreme Court, the theory emphasizing the connection between statutory stare decisis and the separation of powers provides far more credible support for the doctrine than does a theory of congressional acquiescence. Nevertheless, even the separation-of-powers theory does not justify super-strong statutory stare decisis in the courts of appeals. To the extent that statutory stare decisis operates as a restraint on judicial policymaking, it does so based on assumptions about how Congress will react to the Supreme Court. It is both impractical and inconsistent with the system of appellate review that Congress has designed for the inferior courts to assume that Congress will respond to them in the same way. Whatever the merits of statutory stare decisis in the Supreme Court, I conclude that the inferior courts have no sound basis for following the Supreme Court\u27s practice

The Supervisory Power of the Supreme Court

Relying on something it calls supervisory power or supervisory authority, the Supreme Court regularly prescribes rules of procedure and evidence for inferior courts. Both scholars and the Court have treated the Court\u27s exercises of this authority as unexceptional exercises of the inherent authority that Article III grants every federal court to regulate procedure in the course of adjudication. Article III\u27s grant of inherent authority, however, is conventionally understood as permitting a federal court to regulate its own proceedings. When the Supreme Court exercises supervisory power, it regulates the proceedings of other federal courts. More than a reference to every court\u27s inherent authority, therefore, is required to justify the Court\u27s action. If the Supreme Court possesses a unique ability to regulate federal court procedure, it must be because of some unique attribute of the Supreme Court. This Article explores a justification that may well animate the Court\u27s assertions of supervisory power: the notion that the Court possesses supervisory power by virtue of its constitutional supremacy. Analyzing this justification requires pursuit of two questions that are wholly unexplored in the literature and case law. Does Article III\u27s distinction between supreme and inferior courts operate only as a limit on the way that Congress can structure the judicial department, or does it also operate as a source of inherent authority for the Supreme Court? And assuming that the Court\u27s supremacy grants it inherent authority over inferior courts, is supervisory power over procedure part of the authority granted

Precedent and Jurisprudential Disagreement

This Article, a contribution to a symposium on constitutional foundations, maintains that an unappreciated function of stare decisis is that of referee between competing visions of the Constitution. Stare decisis is styled as a doctrine of error-correction, but in controversial cases, error is often a stand-in for disagreement about first principles. In these cases, stare decisis functions less to guide the business of correcting mistakes — a conception that oversimplifies the reality of pluralism on the Court — than to mediate intense disputes about the Court’s role in interpreting the Constitution. Identifying this function of stare decisis offers a different perspective on the values served by the Court’s traditionally weak presumption against overruling constitutional precedent. Insofar as it avoids entrenching particular resolutions to methodological controversies, weak stare decisis reflects respect for pluralism on and off the Court, as well as realism about the likelihood that justices will lightly let go of their deeply held interpretive commitments. At the same time, the weak presumption does not abandon all constraint: placing the burden of justification on justices who would overrule disciplines jurisprudential disagreement lest it become too disruptive. While the ability to overrule comes at some cost to continuity, stare decisis is ill-suited to accomplish much more than this tempering function in the face of continuing disagreement about what the Constitution requires

Professor Amy Coney Barrett, Diploma Ceremony Address

Law Professor, Amy Coney Barrett, Diane and M.O. Miller, II Research Chair in Law, and the Law School Distinguished Teacher, delivered the diploma ceremony address to the Class of 2016 on May 14, 2016

Originalism and Stare Decisis

The question whether stare decisis is compatible with originalism has occupied both originalists and their critics. In this Essay, I explore what light Justice Scalia’s approach to precedent casts on that question. I argue that while he did treat stare decisis as a pragmatic exception to originalism, that exception was not nearly so gaping as his “fainthearted” quip suggests. In fact, a survey of his opinions regarding precedent suggests new lines of inquiry for originalists grappling with the role of stare decisis in constitutional adjudication