Article Title

Tainted Precedent


Supreme Court, racial classifications, constitutional analysis, anticanon, legal precedence


We have a common law system of constitutional adjudication, at least in the sense that constitutional practice in the United States relies on prior rulings rather than reasoning from first principles in each case. If there’s controlling precedent on point, it’s binding. Neither “inferior courts” in the federal system, nor state courts adjudicating federal law, are permitted to start anew with the “original public meaning” of the First Amendment or pronounce a fresh Dworkinian “moral reading” of the Fourth. Even the highest court in the land, the Supreme Court of the United States, for reasons of reputation, stability, and rule of law, does not treat every case it hears as one of first impression—its justices work through forests of precedent (of variable density) in reaching its decisions. And this presents a problem that Professor Killenbeck has identified in his article—what happens when a reasonable, even valuable, proposition of law is found buried deep within problematic or even odious opinions? Unlike some civil law countries, or even some states, there’s no convention in federal constitutional law that permits someone to simply cite a legal proposition—”racial classifications are subject to strict scrutiny”—completely disentangled from the factual circumstances—or persons—that give voice to the decision. And therein lies the problem. Sometimes the legal proposition from an opinion—strict scrutiny—is besmirched with some fairly obnoxious facts. Indeed, sometimes the authors, facts, reasoning, or results are so reviled, that the opinion—whatever kernels of wisdom it may contain—is considered anti-canonical. What to do with this tainted precedent? This short reflection on Professor Killenbeck’s article offers some thoughts on the topic.