Is Justice Kagan Right that Areas of Constitutional Law Should Not Change Quickly on Account of New Membership on the Court?


At a recent event in New York, Justice Elena Kagan reportedly expressed some reservations about doctrinal changes that are attributable to the arrival of new Justices who change the makeup of the Court. According to reports (there is no available transcript), Kagan said that the public should be able to expect that “changes in personnel don’t send the entire legal system up for grabs.” She apparently went on to observe that adherence to precedent is essential “to ensure that people see courts not as political actors” and that if a new Justice arrives “and all of a sudden the law changes on you, what does that say? . . . [i]t just doesn’t seem a lot like law if it can depend so much on which particular person is on the Court.”

In making these points, Kagan (unsurprisingly) did not say explicitly that she was describing the current Court, and did not point to any particular instances in which the arrival of new Justices and the ensuing change of doctrine has undermined the legitimacy of the institution. But it is hard to separate Kagan’s comments from the Dobbs decision last term, where the three Justices appointed by President Trump—Neil Gorsuch, Brett Kavanaugh, and Amy Barrett—joined Justices Clarence Thomas and Samuel Alito to overturn Roe v. Wade and Planned Parenthood v. Casey. Indeed, given that the joint dissent in Dobbs (authored by Justices Stephen Breyer, Sonia Sotomayor, and Kagan) itself focused significantly on stare decisis and complained loudly that “[n]either law nor facts nor attitudes have provided any new reasons to reach a different result than Roe and Casey did. . . . [a]ll that has changed is this Court,” it is hard to believe Justice Kagan was not intentionally, if implicitly, commenting on her current colleagues and their recent actions.

In this column we offer some thoughts on the general concept that the appointment of new Justices can generate doctrinal change.

First, some clarification is useful. Kagan called it problematic for “the entire legal system” to be “up for grabs” whenever the membership of the Court changes. It is hard to disagree with that sentiment. It would also be bizarre to think that we would ever live in a world in which changes in Court membership really could unsettle “the entire legal system” (and not only because vast areas of the legal system are not controlled by courts). We take it, then, that, notwithstanding her hyperbole, Kagan’s real point (since if she were being literal she would be saying virtually nothing) is that it can be problematic if changes in the membership of the Court produce major changes in important (albeit limited) areas of the law, through the outright overruling of past decisions or marked doctrinal shifts away from them. Even here, though, we don’t think Kagan means to suggest that new Justices should never vote to overturn old cases. It can’t be true that if a prior decision of the Court is to be overturned it must be by the same Justices who decided the case in the first place. For one thing, the Justices who comprise the majority in a decision might retire or die not long after the ruling, which would entrench their rulings and completely immunize the decisions of past Justices from reconsideration. It’s one thing—under normal approaches to stare decisis—to accord some respect to the rulings of predecessor courts. It’s quite another to view those rulings as permanent. As the Court itself once pointed out in a different context but nonetheless quite aptly, “federal judges are appointed for life, not for eternity.”

Even understood in light of these narrowing qualifications, Kagan’s assertions can’t really hold up. Importantly, since the early days of the Republic, the appointment of new Justices has often made a difference, sometimes quite transformative, in the direction of the law and the role of the Court. Chief Justice John Marshall broke from the flimsy practices of his three predecessors as Chief to lead a new (and successful) effort to redefine the powers of the Court in its early decades. Abraham Lincoln’s appointees ended the Southern dominance of the Court in ways essential to affirming his powers as President to respond to secession. More recently, and perhaps more memorably, Franklin Roosevelt appointed Justices (eight by the end of his presidency) who reversed decades of cramped accounts of federal governmental power and upheld New Deal programs; indeed, one of Roosevelt’s appointees, Justice Hugo Black, was the intellectual engine for incorporation of the Bill of Rights, a movement that picked up steam shortly after and because of his arrival on the Court. The Warren Court’s liberal coalition of the 1960s, cemented in large part by the appointment of Justice Byron White by JFK, produced what many scholars deem a constitutional revolution in individual rights. And membership changes have continued to influence doctrinal developments in fundamental areas of constitutional law: When one of us (Amar) graduated from law school in 1988, the Court was deferential to exercises of federal power. By the time the other (Mazzone) graduated in 1997, just nine years later, Clarence Thomas had replaced Justice Thurgood Marshall (and Justices Brennan, Marshall, and Blackmun were gone) and the Rehnquist Court’s federalism revolution (led by Justice Sandra Day O’Connor, whose federalism views were much sharper than those of her predecessor, Justice Potter Stewart) was underway. There is of course room to debate the pros and cons of these various developments. But surely some of the changes brought on by membership changes in the past are, in Kagan’s view, positive developments, so it’s hard to conclude that new Justices have not made —and never should make — a difference. Or that Justice Kagan believes they never have or should.

That brings us to what we think (reading between the lines) is Kagan’s central concern: timing. We understand Kagan’s real point to be that it is problematic— it casts doubt on the Court’s legitimacy—for a case to be overturned or the law to otherwise change directions starkly soon after the arrival of a new Justice, whose vote makes an immediate difference. Dobbs fits that frame: three of the five justices in the majority had joined the Court within five years of the blockbuster decision to overturn Roe and Casey and one Justice (Barrett) had been on the Court for less than two years. In other words, we take Kagan to be suggesting, legitimacy requires that new Justices be especially hesitant to vote to overturn a prior case so soon after joining the Court.

We’re not so sure. As an historical matter, many of the developments we discussed above after the arrival of new membership at the Court began to occur quite quickly. And as a theoretical matter—while we certainly appreciate the point that if case law changes with the vote of a newly arrived Justice, the reasonable and natural inference to the outside world is that the new Justice made the difference—we’re not sure why that is a problem. A new Justice surely might (and probably should) place some value on experience, and pay due respect to the considered views of her colleagues with longer Court tenures. But she is not in any way a lesser Justice than they are, constrained in her evaluation of issues by factors that do not apply to her more senior colleagues (and that won’t apply to her either after some period of time). Moreover, by definition, if a case is getting overruled, there are at least four other Justices (of varying levels of seniority) who think it should be overruled. Even in Dobbs, two members who joined the majority opinion (and three Justices who would have upheld the Mississippi law in question and at the very least undone Casey’s undue-burden framework), had been on the Court more than 15 years. It’s possible that in particular cases a new Justice would act with caution. For example, if the other eight Justices are all in agreement, she might rethink (and re-rethink) her dissenting vote. But it’s hard to see why the new Justice who has thought and deliberated carefully should not vote the way she ultimately concludes a case should be decided—even when the result is to overrule a prior case—simply because she is new. It would surely be odd for her to issue an opinion explaining that she fully supports a particular outcome but isn’t voting for it because she only recently joined the Court.

But let’s indulge Justice Kagan’s instinct and see where it leads us. An implication of Kagan’s view (as we assume it to be), that newness matters for stare decisis, is that it is preferable to postpone the decision to overturn a case—until the Court’s membership has been stable for some period. It’s possible, of course, that in the intervening period minds might change or new factors might come to light so that the later overruling won’t ever occur. But (especially if the overruling is inevitable) delay is not without cost. It means that a majority of the Court has decided a case—with real parties and real issues—in a way that a majority of the Court believes is incorrect, and not because of the normal stare decisis reliance factors that might incline a court to stick with a prior mistake, but instead simply on account of the newness of some members of the Court. It also means that lower courts will continue to enforce, and parties will continue to be governed by, legal rules that, but for a Justice’s newness, would no longer be applicable.

Indeed, in light of more traditional stare decisis considerations, delay because of newness could actually have another perverse effect. As just intimated, whenever the Court considers overturning a prior case, it takes account of the nature and extent of reliance upon the prior decision—and the disruption that overturning will produce. A delay in overturning might risk inducing more reliance and increasing the resulting disruption when a case is ultimately overturned. Perhaps, in certain cases, there are ways around this problem: the new Justice (in concert with like-minded Court veterans) might write an opinion expressing serious doubts about a precedent and inviting an additional challenge to it in the future. That might signal that change is coming and that everyone should prepare. But there is no guarantee that anyone will pay sufficient attention. A good example of this is the 2018 decision in Janus v. American Federation of State, County and Municipal Employees, Council 31. In that case, the Court followed through on clear signals it had been sending for a half-dozen years to overrule (wrongly, in the view of at least one of us, Amar) the 1977 Abood v. Detroit Dept. of Education decision involving the permissibility under the First Amendment of so-called union fair-share fees. The inevitability of Abood’s demise was well-telegraphed by the Court, and yet the Janus dissenters (who included Breyer, Sotomayor and Kagan) still argued strenuously that reliance interests were being wrongly frustrated and that proper application of stare decisis foreclosed the majority’s result. If the Justices themselves are not going to take tea leaves seriously, how can anyone expect the outside world to ease off of reliance on a particular controversial ruling over time.

Dobbs is itself is also instructive in this regard. Dobbs followed decades of criticism of and efforts to overturn Roe; dilution of the constitutional right to abortion right in Casey and other decisions; repeated and prominent calls by members of the Court itself to overturn Roe; and President Trump’s campaign pledge to appoint justices who would overturn both Roe and Casey. And yet until Dobbs, many folks did not take action to deal with a post-Roe world; it was not until a few months ago that many state governments began to scramble to adopt laws that reflect contemporary preferences and priorities and to jettison old, untouched statutes that are arguably now suddenly back in force. Is it likely that states (or individuals) would have been better prepared if only Dobbs had come down in 2027 instead of 2022?

In fact, the unworkability of Kagan’s proffered approach seems appreciated by Justice Kagan herself. In 2013 she, then on the Court for less than three years, joined four colleagues in Alleyne v. United States to overturn a precedent from a decade earlier, Harris v. United States. Alito, dissenting, (appearing to channel Justice Kagan circa 2022) wrote: “[t]he Court overrules a well-entrenched precedent with barely a mention of stare decisis” and that Harris was overturned “simply because a majority of this Court now disagrees” with it. If Harris be thought of as too small a fish to implicate concerns about the Court’s credibility (it involved a relatively technical question under the Sixth Amendment), consider also that two years later, in 2015 (by which time Kagan was less new but still quite junior), she joined four other Justices in the momentous case of Obergefell v. Hodges to overturn Baker v. Nelson and recognize a federal constitutional right to marriage equality.

In the end, then, we believe that most if not all members of the Court are willing to overrule (even momentous) past rulings that to the Justices in question seem wrong, even when the Justices are still junior on the Court. Many discussions about institutional legitimacy, like many unfocused discussions of stare decisis more generally, seem to us not to be grounded on neutral principles, but instead are a reflection of which particular cases are on the chopping block at the time, and whether the participants in the discussion agree or disagree with those past rulings. And the particular decisions at risk of being overruled—rather than the Court’s standing in the political world—is precisely where we believe the action ought to be; putting aside the unusual case when reliance interests truly counsel against correcting past mistakes, we think that the Court getting it right, even if that means some quite conspicuous course correction, should be the primary objective. And the battles should be waged primarily on the question of what the Constitution, best read, really means in the controversial cases of the past and today, not on whether the Court is sufficiently attendant to the way the institution might be perceived.

Notwithstanding our doubts, Kagan’s comment apparently has resonated in some quarters. Citing her talk and polls showing a decline in public approval of the Court, a recent editorial by the Washington Post dubs Dobbs “the single greatest act of self-sabotage the [C]ourt has committed in modern times” because “[t]he public saw the court’s makeup change — and, suddenly, so did what had been long-settled law on a question of extreme social importance.” Interestingly, the Post editorial endorses term limits for Supreme Court Justices as a way to, among other things, make it harder for “one political party, through luck, shamelessness or both, to stack the court, leading to sharp and sudden ideological lurches.”

There are probably good reasons for term limits at the Supreme Court, but we point out the seeming irony of the Post’s analysis and prescription. If the problem is indeed (as Kagan and the Post suggest) new Justices abruptly altering doctrine, it is far from clear why more turnover in the membership of the Court would be the cure. Wouldn’t we instead see more frequent instances of changes corresponding with new arrivals? Indeed, one of the premises of the argument for term limits seems to be that new Justices who reflect the attitudes of new Presidents and the people who elect them will rightly influence doctrinal directions consistent with those new ideas. But that is the notion that the Post and Kagan seem to have a problem with.

Perhaps some term-limit proponents believe that shorter terms of service would in general create stronger respect for stare decisis because, say, new Justices are less likely to rock the institutional boat or will fear their own decisions being reversed as soon as they leave. But the opposite might well be true: a shortened tenure might encourage big steps early and often precisely because the clock is ticking. It is also possible that term-limits advocates’ goal that the Court’s membership track election results is simply a recognition of the fact that new Justices are willing to quickly alter settled precedent, not that they should. But, as we have tried to demonstrate, if newbies on the Court didn’t interject their voices and votes straightaway in the 20th century, the constitutional landscape today would look very different and, in many respects, (from our point of view) worse.

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