The first shot in the coming epic battle over the Constitution and the Court was fired last week. It came in a dissenting opinion written by Elena Kagan.
The decision by the Court’s majority, interpreting the “just compensation” clause of the United States Constitution, reversed a century of jurisprudence, and, essentially, narrowed the ability of governments to take property without compensating property owners first.
The case was a notable affirmation of the importance of property rights in the United States, but it was something deeper, and thus the need for Justice Kagan to sound the alarm.
The key passage in Kagan’s dissent in which she quoted from a 2015 Supreme Court case was “[I]t is not enough that five Justices believe a precedent wrong. Reversing course demands a 'special justification — over and above the belief that the precedent was wrongly decided.'” Kagan was invoking the hoary legal notion of stare decisis, a principle learned by every first-year law student, two Latin words meaning “to let the decision stand,” or, in short, to follow a pre-existing precedent.
There is a belief, particularly appropriate to private law — the law governing agreements and property rights generally — that certainty in the law is one of the most important aspects of a sensible society. Thus the notion of stare decisis has been dominant in what lawyers call the “common law,” the law applied, for example, to commercial transactions and to criminal law. The common law has always been the primary concern of judges, and deferring to previous decisions by judges is a tradition older even than the United States itself.
Justice Kagan is a former Dean of the Harvard Law School, and she reflects the dominant legal academic view that stare decisis ought to apply in cases involving Constitutional law, as well as cases of private law. A corollary of that notion, which appears intermittently throughout American history, is that what the Supreme Court has said in the past is the ultimate word on what the Constitution means, that a Supreme Court decision is, actually, of as much binding force as the Constitution itself.
There is a contrary view, however, held by such notables as Abraham Lincoln and Clarence Thomas, that sometimes the Supreme Court gets it wrong, and that there is an objective and true meaning of the Constitution that ought to be followed whether or not the Supreme Court has held to that view in the past. In other words, there is a belief that stare decisis simply has no role, or a lesser role to play in Constitutional law than in common law.
That contrary view flows from the notion that the Constitution is the ultimate expression of the will of the American people themselves, and that that will ought always to be followed. The Court, generally composed of elite lawyers, is not necessarily always right about what the American people have expressed in their Constitution, and when the Court gets it wrong, it ought to be corrected.
What is really going on here is a fear among liberal and progressive lawyers and politicians that some clearly erroneous Supreme Court decisions, which have been on the books for decades, may, now that the Supreme Court has a solid majority of conservatives, begin to overrule those decisions.
For many years the progressives, who could not get their programs enacted by state and federal legislatures, have managed to get the courts, particularly the federal courts, to trump the will of the people by issuing judicial decisions purportedly based on the Constitution.
The result has been what has been called “Government by Judiciary,” and not, as the framers contemplated, government by the American people themselves. Donald Trump’s promise to appoint Justices and judges who would follow the will of the American people expressed in the Constitution, and not make law to suit themselves was a reaction to judicial excess and is one of the most important reasons Trump won the 2016 Presidential election.
Justice Thomas, possibly aided by the Trump-appointed Justices Gorsuch and Kavanaugh, may now be poised to address decades of erroneous precedent in the areas of race, religion, and abortion, just to name three key matters on which the Court engaged in the most notorious judicial legislation.
The reign of progressive judicial legislation may, after many decades, be coming to an end, and the restoration of the prerogative of the American people may be dawning. As Justice Kagan’s dissent suggests, the liberal Justices on the Supreme Court will do everything they can to discourage this development, but because the true meaning of the Constitution — not the Supreme Court’s view — ought to be the law of the land, they will be the ultimate losers in what is to come.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.
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