First year law students learn to identify the weight of legal authorities through simple heuristics. Law presents itself as a hierarchical system, with a constitution on top, statutes immediately below, executive regulations and orders following, and judicial opinions at the bottom, but not necessarily last. Every law student learns that the top court of every state and the federal government claim the final say on the validity of other sources of law within its governing jurisdiction.
Judicial opinions, in fact, take on a hierarchy separate from other sources of law in weight of authority analyses. The judiciary in every state and the federal government is broken down into three tiers. Trial courts act as the first-level fact-finding body. Although trial courts also determine questions of law, questions of law are always viewed anew (de novo) by appellate courts. Intermediate appellate courts are broken down into separate districts or circuits, each respectively handling appeals from trial courts within the same district or circuit. And, every state and the federal government have one Court that is supreme on all issues of law within its governing jurisdiction.
When conducting legal research, law students and practitioners rely on their heuristics to identify mandatory (binding) authority and persuasive authority. When judicial opinions are the primary source of law at issue in the legal research, each court within the hierarchy described above is bound by the prior decisions of the courts above it within the same jurisdiction.
Stare Decisis is the principle that justifies the binding nature of a prior court’s decision on a lower court within its jurisdiction. That is, Stare Decisis (as triggered by “precedent”) gives weight to the authoritative dictates of each court within the hierarchy. Notably, Stare Decisis is only a legal principle. It is not in the United States Constitution or the Texas Constitution. And, Stare Decisis is not externally binding in any meaningful sense; that is, there is no mechanism by another branch of government to force a trial court or appellate court to adhere to the principle of Stare Decisis in a given case.
The Weight Problem
Herein lies the weight problem: The judiciary is the only branch of government that determines the weight of its own authority. Trial courts and appellate courts may decide for any reason not to follow precedent. Usually a reason is provided. A judge or justices may try to draw a factual distinction between a prior case and the case under review, or a court may just decide that it was flat wrong in the past and may provide its reasons in support of a new course.
The judiciary’s ability to determine the weight of its own authority creates a number of problems. First, as most new practitioners learn straight out of law school, legal research and writing efforts are frustrated by inconsistent or non application of Stare Decisis, especially when the court provides insufficient or suspect reason(s) for its deviation from precedent. Second, and related, inconsistent application of precedent invites cynicism about the judiciary and its function, leaving both practitioners and the general population with the impression that judicial decisions are but arbitrary whims of individual judges.
Third, deviations from precedent obscure political accountability. The separation of powers doctrine is infused in the structure of every state and the federal constitution. Checks and balances—the notion that each branch may act as a check on another branch against abuses of power—are central to the separation of powers doctrine. A Legislature cannot simply change its mind about a law and decide to unilaterally repeal it; the Executive must approve, unless the Legislature obtains a supermajority to override an executive veto—even then all legislation is subject to judicial review. Likewise, the Executive cannot act with impunity when it issues an executive order; the executive’s order is subject to review by the Judiciary. Without any other branch checking the judiciary when it comes to deviation from precedent, the judiciary may effectively act with impunity.
Constitutional Support for Inherent Judicial Powers
The question arises: What justifies our understanding of “the weight of authority”? Well, Constitutional support does exist for the judiciary to determine the weight of its own authority. Inherent in our constitutional structure lies the separation of powers principle. Each branch enjoys its autonomy and may create its own institutional norms and rules to articulate the proper exercise of its power, so long as those norms and rules do not conflict with the Constitution or, in the case of the Executive, a controlling statute.
The Constitution also, arguably, grants inherent powers to the Judiciary, such as the power of judicial review—i.e., the power to invalidate legislation, regulations, or executive orders (a power that enables the judiciary to determine the weight to attribute to legislative and executive authority). The U.S. Constitution is silent as to the power of judicial review, although Alexander Hamilton touched on the Judiciary’s “duty . . . to declare all acts contrary to the manifest tenor of the constitution void.”(Federalist 78).
The question whether the Judiciary actually does possess such inherent powers is similar to the question surrounding inherent powers in the Executive. Hamilton argued that, unlike the Legislature, the Executive possessed inherent powers. As evidence, he noted the difference between the vesting clauses of Articles I and II in the Constitution. Article I states: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Article II, on the other hand, states: “The executive Power shall be vested in a President of the Untied States of America.” The Executive, unlike the Legislature, is not limited to the powers “herein granted.” So, Hamilton argued that the President enjoyed powers not delineated in Article II. See Alexander Hamilton, First Letter of Pacificus (June 29, 1793), repreinted in Williams H. Goldsmith, The Growth of Presidential Power: A Documented History 398, 401 (1974).
The U.S. Supreme Court weighed in on the debate over inherent Executive powers in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). President Harry Truman issued an executive order for the federal government to seize steel mills to keep them operational when the United Steelworkers Union threatened a nationwide strike. President Truman feared that the strike would stall steel production, thereby frustrating the Korean War effort and endangering national security. The Court held that President Truman acted in excess of the Executive’s constitutional power. Despite its conclusion, seven different opinions emerged, each with a different stance on the question whether the Executive enjoyed inherent presidential power. Even though each opinion expressed certain limitations, all but one acknowledged the existence of inherent executive power.
Although the Judiciary has articulated its own inherent powers, constitutional support does exist for such inherent powers in the judiciary, based on the separation of powers doctrine, and the Federalist Papers. It is also worth noting that Article III’s vesting clause mirrors Article II: “The judicial power of the United States shall be vested in one supreme Court. . . .” The Judiciary, in other words, is not limited like the Legislature to the powers “herein granted.”
What About Checks and Balances?
Some constitutional support may exist to support inherent judicial power to determine the weight of its own authority, but the separation of powers doctrine rests not merely on the notion of the autonomy of the Legislature, Executive, and Judiciary, but also on the notion that each Branch can act as an external check against abuse of power by any other Branch. Moreover, the Framers envisioned internal controls or checks on each Branch to minimize the risk of power abuse. James Madison best expressed the necessity of internal and external controls: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government . . . you must first enable the government to control the governed; and in the next place oblige it to control itself.” (Federalist 51).
External controls do exist to somewhat check abuses of power by the judiciary and minimize deviations from the principle of Stare Decisis. These controls indirectly address the problem. These external controls include the impeachment process, the prerogative of the Executive to enforce judicial decrees, the legislative power to diminish the structure of the judiciary, and the constitutional amendment process.
Article III provides that “judges, both of the supreme and inferior Courts, shall hold their offices during good behaviour. . . .” Most jurists refer to federal judiciary tenure as “life tenure,” but the tenure is explicitly “during good behaviour.” See also Federalist 78. Unlike Article II, which provides a removal process for the President, Vice President and officers of the Executive Branch, Article III does not expressly mention an impeachment process. Nevertheless, impeachment is the process used to remove judges. John Pickering was the first federal judge to be impeached, convicted, and removed from office. His removal was controversial, since the charge centered on alcohol abuse and alleged incapacitation, but the Jefferson administration saw Pickering’s removal as a test run for a bigger fish—Justice Samuel Chase. Chase earned Jefferson’s ire when, among other things, Chase openly criticized Jefferson and his party for repealing the Judiciary Act of 1801. The Senate did not convict Chase, and the whole impeachment has been historically viewed as an attempted political coup.
Impeachment, or the threat of impeachment, may act as a check against deviations from the principle of Stare Decisis. But, one must wonder whether such deviations would constitute “bad behavior,” or a high crime or misdemeanor. As mentioned above, judges generally make an attempt to distinguish precedent, even if stretching the bounds of analogy and disanalogy. And, overuse of the impeachment process may work to undermine the legitimacy of the other branches; certainly, too many impeachments would undermine the judiciary’s legitimacy and diminish public confidence in the judicial system. So, impeachment may not be a very effective check against deviations from precedent.
In states with elected judicial officials, the external check here is popular elections. Of course, too much popular turnover in the judiciary does not bode well for the impartial branch of government.
Hamilton famously stated that the Judiciary was the “least dangerous branch.” (Federalist 78). He argued that the Judiciary could not exercise any power to enforce its own orders. The Executive could, if it so desired, decide not to enforce a judicial opinion. Of course, there have been no real examples—other than the possibly apocryphal account of Andrew Jackson declaring, “Chief Justice Marshal has rendered his opinion; now let him enforce it,” in response to the Court’s ruling in Worcester v. Georgia—of executive non-enforcement. Moreover, failure to enforce judicial decrees would also work to undermine the Rule of Law, the legitimacy of the Executive and Judiciary, and, again, diminish the general population’s confidence in the judicial system.
Legislative Diminution of Judiciary
Hamilton also supported his “least dangerous branch” claim by pointing to the fact that the legislature controlled the purse; whereas, the judiciary could not exercise influence over legislative expenditures. The legislature, in this vein, could severely defund the Judiciary to check abuses by it. Additionally, the Legislature, with Executive approval, could diminish the size of the judiciary by, for example, reducing the number of courts, judges, or justices. Of course, historically, threats to reduce or even increase the number of Justices on the Supreme Court have been issued as a means by which to advance the sitting Executive’s agenda. For example, President John Adams signed the Judiciary Act of 1801, which reduced the number of Justices from six to five, to minimize the opportunity for Thomas Jefferson (then President-elect) to appoint a Supreme Court Justice. And, President Franklin Delano Roosevelt threatened to pack the Court with twelve Justices in order to set his New Deal in motion without judicial interference. Still, the power of the legislature, with Executive approval, to control judicial funding and the makeup of the Judiciary is a slow path to checking immediate or even serial deviations from the principle of Stare Decisis.
A constitutional Amendment would end the weight of authority problem altogether. If a supermajority decided, it could include a strict command in the Constitution for the judiciary to (1) adhere to the principle of Stare Decisis, (2) avoid deviation from precedent, unless a clear and obvious distinction in the facts and the law of the prior case exists and is articulated. A separate provision could also create an independent body to evaluate suspicious or questionable deviations from precedent, with a mandate for issuing reprimands to individual judges and instituting a process for removal for bad behavior, which might be defined to include repeat and arbitrary deviations from the principle of Stare Decisis. However, Constitutional Amendments are rare, and require a supermajority. The threat of a constitutional Amendment is not itself effective in acting as a check against deviations from the principle of Stare Decisis.
On the whole, external controls are in place to check potential abuses of power by the Judiciary. These controls may not be the most robust to check deviations from the principle of Stare Decisis, but they do exist and are available.
Internal controls also exist to minimize the risk of arbitrary and serial deviations from the principle of Stare Decisis. As with the external controls, these internal controls address the problem indirectly. These internal controls include the hierarchical structure of courts, the intellectual rigor required to preform as a judge, and institutional loyalty.
Hierarchical Structure of Courts
The hierarchical structure of courts acts as an internal control against arbitrary deviations from Stare Decisis. If a trial court decides not to follow precedent, an intermediate court of appeals will have an opportunity to review the trial courts decision, including its reasoning—this assumes that the parties consider an appeal worthwhile in terms of cost, time, and effort. Should an intermediate appellate court deviate from precedent, the Supreme Court (or other highest court in the jurisdiction) will have an opportunity to consider whether the issue deserves attention. This whole process provides a feedback mechanism that allows the Judiciary to check itself. And, since judicial opinions rest for support on reason and rationale, and considering that judicial opinions are often published for public view, some transparency over the process exists, which encourages judges to adhere to precedent.
Intellectual Rigor and Qualification
The nomination process might act as an external check against judicial abuse of power, if we assume that the nomination process involves consideration of each judicial nominee’s intellectual acumen and dedication to the legitimacy of the judiciary. Alexander Hamilton appeared to believe that the very nature of the job in the judiciary ensured that only intellectually qualified persons would serve. He wrote:
It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensible that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent a competent knowledge of them. Hence it is, that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.
Hamilton did not overstate the importance of rigorous study to the practice of law, with its reliance on voluminous cases. The very nature of the job, in short, may act as an effective check against arbitrary deviations from precedent.
Among the internal controls identified by James Madison, institutional loyalty is one less often emphasized but that should not be understated. Madison wrote:
But the great security against a gradual concentration of the several powers in the same department, consist in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of the attack. Ambition must be made to counteract ambition. The interests of the [person], must be connected with the constitutional rights of the place.
(Federalist 51). When a judge’s personal motives align with the interest of his or her home institution (the Judiciary), Madison urged that the official (judge) would act so as to advance the best interest of the institution (the Judiciary). See also David Fontana and Aziz Z. Huq, Institutional Loyalties in Constitutional Law, 85 U. Chi. L. Rev. 1, 12-13 (2018).
Judges concerned with their own, personal legacies, reputations, or livelihoods generally, possess a strong motivation to see to the legitimacy of the Judiciary, their home institution. So long as institutional loyalty is present, arbitrary deviations from precedent may be minimized.
Although judges may at times deviate from the principle of Stare Decisis, giving rise to the problem that the Judiciary chooses the weight of its own authority, the problem, though not fully resolved, is mitigated by constitutional checks in place.