The Unmaking of a Precedent
How far can you stretch precedent before it breaks? The 2002 Term suggests that some Justices seem to think that treating precedent like silly putty is preferable to acknowledging that it might be in need of revision. But obvious inconsistencies in the application of precedent are a strong indication of underlying doctrinal problems. In this article, I suggest that the majority's misuse of precedent in Nevada Department of Human Resources v Hibbs' should lead us to question the soundness of the Supreme Court's previous cases defining the limits of Congress's authority under Section 5 of the Fourteenth Amendment. But the cloud that Hibbs casts over precedent has a silver lining: the ways in which the Court misused its own precedent point us to a better and more coherent reading of Section 5. Other scholars who have criticized the Court for its Section 5 doctrine have argued that the Court's jurisprudence is fundamentally mistaken because it misallocates authority between Congress and the Court. I propose instead to take as a given that the Court should police the boundaries of Congress's Section 5 power, and that ultimately the Court rather than Congress must decide whether a problem is sufficiently important to justify the congressional response, including the abrogation of state immunity from suit. My suggested doctrinal revisions thus do not require a radical shift for a Court determined to limit congressional authority. I also remain agnostic on the soundness of particular outcomes. What ever we might think of the decisions in recent Section 5 cases, this Court is unlikely to overrule them; the advantage of my approach is that it preserves most of the cases but makes them consistent with one another. Finally, my approach to Section 5 has the added benefit of forcing the Court to be more candid about the value choices that it inevitably makes. Note, then, that my purpose in this article is limited: I do not mean either to critique or to defend particular outcomes, but rather to make suggestions about the pro cess by which the Court should decide cases-although process will inevitably have some effect on outcomes. Outcomes aside, however, improvements in the judicial decision-making process in crease the Court's legitimacy, foster adherence to the rule of law, and diminish the opportunities for abuse of judicial authority.