America's Unwritten Constitution: The Precedents and Principles We Live By

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Authors: Akhil Reed Amar
if both cases come to be widely embraced by the citizenry, only the rights-expanding case interacts with the text of the Ninth and Fourteenth Amendments so as to specially immunize it from subsequent reversal. 24
    A second equitable principle, prominent in judicial decisions stretching back hundreds of years, directs judges to give due weight to the ways in which litigants who come before the Court may have reasonably relied upon prior case law. Judicial power, by its nature, is retrospective. The judiciary applies law to transactions that have already occurred. Erroneous precedents create facts on the ground that properly influence the application of retrospective judicial power. In some cases, these facts limit the Court’s ability to abruptly change course, even if persuaded of past error. For example, even if the Court were tomorrow to deem erroneous its longstanding precedents upholding the constitutionality of paper money, surely the justices could not ignore the vast economic system that has built up in reliance on paper. 25
    Erroneous precedents are not unique in this respect. Prior unconstitutional conduct of other branches may likewise create faits accomplis that courts cannot easily undo after the fact. Unlike a broad reading of the Casey dictum, which treats erroneous Court precedents with more deference than erroneous statutes, a sound structural and equitable approach would respect the general coordinacy of the three branches and would recognize that judges must have due regard for facts on the ground created by prior actions of all branches and levels of government. This feature of judicial underenforcement is built into the very structure of the Judicial Article, under which judicial review can sometimes occur long after certain practices have become settled and virtually impossible for courts to reverse.
    Impossible for courts to reverse—but not necessarily for legislatures. A prior erroneous Court ruling does not properly amend the Constitution, and other branches of government may be able to return to a constitutionally proper regime by acting purely prospectively in a way that judges perhaps should not. Imagine, for example, a statute proposing a gradual ten-year phase-in of a new, more constitutionally appropriate regime to replace the old case law that the Court now admits was erroneous. Were the Court itself to announce such a purely prospective phase-in, this announcement might strain the traditional boundaries of proper “judicial Power,” precisely because the announcement would look purely “legislative” in nature. But legislatures, of course, typically act in precisely this purely prospective fashion, and phase-in statutes are commonplace.
    It is thus important for the Court to tell the public if the justices have indeed erred in the past precisely so that the other branches may ponder their constitutionally permissible options. Justices may not relish confessing error, but they have no warrant for refusing to do so when called to account. The Court’s duty, then, is not, as a broad reading of the Casey dictum would have it, to affirm and extend precedent without deciding whether precedent is right or wrong. Rather, the judicial duty is first to admit error whenever the Court finds that error has occurred, and then to consider whether special reliance interests apply and how those interests might limit the use of retrospective judicial power.
    In other words, the Court’s province and duty is to say what the law is—the law of the Constitution, of course. If, in the process, the Court decidesthat this supreme law has been violated, whether by a state law, a federal law, or a presidential proclamation— or a past ruling of the Court itself— the justices should declare that fact and then do their best to analyze how, if at all, this wrong might be righted, and by whom. When the Court itself is the source of a constitutional wrong, it has a particular obligation to help right that wrong,

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