By Donald J. Kochan
Court watchers start to salivate in May,
looking anxiously toward June and the end of the "term" of the
U.S. Supreme Court, which, like leaving dessert for last at dinner, often
leaves the tastiest part of its decisional meal for last. This year's term
is no different. We anxiously await many opinions over the next couple
months from the Supreme Court, as we always do this time of year.
In last year's October 2006 term, the U.S.
Supreme Court chose to hear only 78 cases of the approximately 8,800 cases
filed. Its menu is quite selective, all the more reason to care about both
the selections and outcomes. Our appetites await these results and their
reverberations afterward. The most visible academic and media discussions
of the law surround them. Only those decisions that percolate to the top
of the menu, after multiple lower court restaurateurs play with the legal
recipes, reach this level where the dishes served out of the Supreme Court
come with such a significant stamp of quality or interest.
At the café
of the courts, legal observers make a reservation at the table, coming in
with our own anticipations or predictions about the meal that will be
served but approaching it out of a certain hunger for an answer - some
precedent and some finality. We have the menu memorized, knowing the
courts' dockets, then anxiously await and prognosticate what the chefs
have to offer. Before it arrives, we wonder whether the evening will end
with a satisfyingly complete consumption of the meal or if something will
be left wanting or incomplete. We might not even care about how we are
served but be present simply to observe the table next to us and its
relevance to our own interests. We wonder whether the chef's dishes all
around will leave us full or whether we will be taking it home for some
post-hoc calculation or conclusion, consumption and contemplation of its
contents, or calibration and confrontation for its disposal - for good or
bad. Precedent is the doggy bag of law. What we do with it when we get
home makes all the difference.
We all hunger for something to take away
from the decisions reached from our courts. We search for some means by
which there is a heightened level of certainty and predictability that can
guide our future decisions. The concept of precedent is precisely one of
the primary reasons there is such intensity in our observation of
pronouncements from the highest court in the land. They let us know what
legal food we can take home and provide at least a smattering of
information about how it should taste when we get there.
So the question again is why do we care?
Why do we book the reservation and engage at this legal table in the first
place? Why do we show for the chefs' presentation, and why do we care when
we leave? It is because our system of law is based on reference and
analogy. What happens in one case can affect parties to that litigation
and strangers alike precisely because we rely on precedent. That, for
example, is why you see indirectly interested parties acting as amici
curiae, especially when the stakes rise as high as the formation of legal
doctrine at the Supreme Court.
But precedent does not just serve
individual desires of. It is also an institutional necessity. Rule of law
values underlie our demand for, and infatuation with, the concept of
precedent in our legal system. We must know what the law is before we can
reasonably choose our actions, and precedent plays an enormously
influential role in that process. Throughout the historical development of
the rule of law, there has been sensitivity to using law as a means of
predictability, stability, confirmation of investment-backed expectations
and confidence in the enforceability of transactions, transferability,
transparency and trustworthiness.
The fundamental elements to a legal regime
based on the rule of law involve: clear and understandable rules;
predictability and certainty; procedural validity in the formation of
rules and rules independent of individual whims of government officials
and instead with a basis in established law. There is a strong foundation
for the importance of precedent, from the founding of the American
republic forward. As Alexander Hamilton explained, "To avoid an
arbitrary discretion in the courts, it is indispensable 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
Essentially coterminous with precedent is
the phrase for its effect - stare decisis et non quieta movere, or
"to stand by matters that have been decided and not to disturb what
is tranquil." Finding the balance between past wisdom and prospective
application is one of the primary difficulties with courts' application of
precedent and the public's reliance on the same.
To quote Shakespeare from "The
Tempest," "What's past is prologue." The direction of the
law helps us know how to think, how to practice and how to maneuver within
a system of established rules and their susceptibility to being
distinguished from the facts at hand. Identifiable precedent allows us the
privilege of predictability and sometimes the promise of knowing the
baseline from which a case must be distinguished. It is, however,
handicapped when continuity or confidence or confusion infuse our
understanding of the applicable rules - such as the court is want to do
when it throws us split decisions and multiple opinions.
When we are patrons at the diner of the
Supreme Court (or any courts for that matter) - as participants or
observers - we should always want a doggy bag to take away from the meal.
And we should always want to check inside when we get home and analyze its
contents. And then, apply our knowledge of those remnants to our next seat
at the table.
The contents may be clear, mysterious or
unidentifiable. Your waiter may have mixed the dishes, much as pluralities
do, such that you do not know for sure what you have taken home, or the
leftovers may be consumed with palatal clarity that has a lasting effect.
Those possibilities become the culinary quandary of court decisions. Our
system of precedent demands that we examine the nature, substance, and
value of the doggie bag provided and whether to keep it, throw it away or
find some use for it. Look on as the term ends and sends you home from the
We brace ourselves for a summer of ingesting and deconstructing another
set of precedents and anticipating the next steps in the evolution of our
laws as the Supreme Court term speeds to its impending close.
Donald J. Kochan is an associate
professor of law at Chapman University School of Law.