Constitutional Law and Precedent

International Perspectives on Case-Based Reasoning

Monika Florczak-Wątor, Monika Florczak-Wątor

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000589993
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

This collection examines case-based reasoning in constitutional adjudication; that is, how courts decide on constitutional cases by referring to their own prior case law and the case law of other national, foreign, and international courts. Argumentation based on judicial authority is now fundamental to the resolution of constitutional disputes. At the same time, it is the most common form of reasoning used by courts. This volume shows not only the strengths and weaknesses of such argumentation, but also its serious methodological shortcomings. The book is comparative in nature, with individual chapters examining similar problems that different courts have resolved in different ways. The research covers three types of courts; namely the civil law constitutional courts of Germany, Italy, Poland, Lithuania, and Hungary; the common law supreme courts of the United States, Canada, and Australia; and the European international courts represented by the European Court of Human Rights and the Court of Justice of the European Union. The authors are distinguished scholars from various countries who specialise in constitutional justice issues. This book will be of interest to legal theorists and practitioners, and will be especially insightful for constitutional court judges. The Open Access version of this book, available at www.taylorfrancis.com, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

Part I
Supreme courts in the common law system

1 The Supreme Court of the United States Legitimate law-maker and constitutional interpreter¹

Paweł Laidler

DOI: 10.4324/9781003264262-3

Introductory remarks

One of the most famous justices in the Supreme Court’s history, Robert H. Jackson, explained the character of the Court’s decisions and the role of the justices by stating, “We are not final because we are infallible, but we are infallible only because we are final.”² The issue of finality in the Court’s jurisprudence has been discussed and researched for the last half-century, bringing several important conclusions as to the binding character of its precedents, and proving that the position of the judicial branch in the US legal system has been determined by both the theory of common law, and the active use of the power of judicial review.³

One of the foundations of the common law system, created in medieval England, is the law-making ability of judges. According to common law theory, while solving conflicts and deciding individual cases judges are able to establish general rules and principles which may be used in future cases. These rules, called precedents, may have a binding or persuasive character, depending on the scope of the similarity of two cases and the decision of a judge who applies the rule to the circumstances of the adjudicated case.⁴ There is not much theory guiding the rule of precedent, except for the stare decisis doctrine, introduced for the first time in thirteenth-century England, which means the necessity to follow the earlier-established precedents in all future similar cases.⁵ The rule of precedent and stare decisis doctrine lay at the foundations of the English legal system and were implemented in the North American colonies, leading to the reception of common law in the future territory of the United States. The colonists, and later the representatives of the states who established the new country, followed the principles of common law, approving the ability of judges to create legal norms and the courts to operate in a system based on precedent.⁶ During the Philadelphia Convention which adopted the federal constitution, the Founding Fathers did not devote much time to the discussion concerning the structure and powers of the judicial branch, but they all agreed that there should be a strong central court functioning within the federal government according to the rules of the common law.⁷

The Supreme Court of the United States (SCOTUS) has existed since the beginning of American statehood, since it was introduced in the federal constitution. The provision vested “the judicial power of the United States” in “one Supreme Court” and in lower courts which were to be created by Congress.⁸ The process of the establishment of three levels of federal judiciary began with the famous Judiciary Act of 1789 and was followed by numerous pieces of legislation expanding the number of federal district and circuit courts of appeals, which also determined their membership and defined their competences.⁹ In this way, Congress exercised an indirect influence on the operation of the SCOTUS, which decided most of the cases based on appeals from lower courts. The impact of federal legislature on the judiciary resulted also from the Senate’s power to approve judicial appointments made by the President, as well as from the power to implement legislation setting the number of justices. Both branches, legislative and executive, were equipped by the supreme law of the land with strong checks on the functioning of the federal courts, including the SCOTUS. The Founding Fathers feared an accumulation of competences by any of the three branches of government; thus both the idea of the separation of powers, accompanied by the checks and balances system, became fundamental principles of American constitutionalism.¹⁰

In the initial phase of American statehood, the judicial branch did not exercise any serious checks on other branches of government; therefore, in 1803, the Court decided to equip itself with the power of judicial review, which opened the possibility of controlling the constitutionality of federal and state acts by judges, thus strengthening the position of the SCOTUS in relation to the President and Congress. Deciding the milestone case Marbury v Madison, Chief Justice John Marshall declared that it was “the province and duty of the judicial department to say what the law” was, naming “the government of the United States” as “the government of laws, and not of men”.¹¹ The power of judicial review, along with its ability to establish binding precedents, made the SCOTUS a potential key player in defining the character of constitutional provisions, including the powers of the executive and legislative branches, and the scope of the rights and freedoms of individuals. It became apparent over time that the justices used their powers to be actively involved not only in the process of determining legal issues, but also in shaping political and social relations.¹² This soon led to the judicialization of politics, marked by the involvement of judicial actors in political processes, which could be recently observed in the American context especially with respect to the Supreme Court.¹³

This chapter discusses the position of SCOTUS precedents in US legal and political system, including the hierarchy of sources of law, the relations between the Court and lower judicial institutions, and the impact of international and national courts on its adjudication. The significant position of the SCOTUS in the US legal system should be analyzed from various perspectives, both legal and political, with reference to the Court’s case law and individual opinions of the justices, additionally focusing on statistical data and various studies conducted in recent years, which may help us to understand the methodology of the Court’s decision-making process. It is crucial to assess how much the common law theory— stare decisis doctrine and the rule of precedent—has determined the functioning of the highest judicial tribunal in the US, making it one of the most active constitutional courts in the world.

The position of the Supreme Court in the U.S. legal system

The US Supreme Court is the highest judicial institution in the American legal system, adjudicating in cases coming from the lower federal courts (mostly circuit courts of appeals) or the highest courts of each of the 50 states. The SCOTUS decides cases based mostly on the appellate jurisdiction, rarely exercising its power as a court of first and final resort (original jurisdiction). Since 1869,¹⁴ the Court consists of a chief justice and eight associate justices who are appointed by the President, with the advice and consent of the Senate, and who enjoy life tenure.¹⁵ The SCOTUS operates in annual terms, usually from October until June or July, providing written opinions in about 60–80 cases in each term. Justices have the discretionary power to determine in which cases the Court should issue a writ of certiorari, which means their approval to review the case. Analysis shows that the SCOTUS issues such a writ in less than 1% of cases every year, proving that unless a dispute raises serious constitutional issues, there is limited access to the highest judicial instance. The analysis of the procedure of issuing writs of certiorari in recent decades reveals that there is consistency in the types of cases which are approved by the Court. They include disputes which raise serious constitutional questions, especially when a lower court has imposed judicial review, conflicts between lower courts over statutory or constitutional interpretation, cases which raise concerns over the constitutionality of an important federal act, or when the Solicitor General has filed a motion for review of a case in which the US government has an interest.¹⁶ Later, the justices hear oral arguments of the parties, and they discuss the case and present their arguments during conferences which end with a voting procedure. If all justices are present, five votes are necessary to reach the majority, and the Court’s decision is later announced and published in one or more opinions,¹⁷ becoming binding law.

Theoretically, the position of SCOTUS precedents in the US legal system stems from the place the Court occupies within the judicial branch. As the court of last resort, it has the ability not only to review cases coming from lower federal and state courts, but also to reverse the decisions of these courts. In order to overrule a lower court’s precedent, five out of the nine justices need to agree upon the verdict in the case. And, by analogy, a precedent created by the SCOTUS has a direct binding effect on the lower court(s) from which the case was brought on appeal. However, in order to fully understand how the process operates and what is the real value of the Court’s precedents, it is necessary to determine the character of the legal norms established by judges in the common law system. Contrary to their counterparts in the civil law system, common law judges not only adjudicate in disputes reaching verdicts which apply to the parties to the disputes, but they also have the ability to create rules of more general character which may be used in similar future cases. Establishing a precedent in a concrete case does not directly mean its application in all similar disputes, since the decision to apply a precedential rule is made by the judge adjudicating in the future dispute. Hypothetically it is possible that, despite obvious similarities of the facts and circumstances of two cases, a judge decides not to apply the precedent and creates a new rule. Therefore, the general character of the precedential...