Supreme Court Justice Elena Kagan has staked out a position for herself as the Supreme Court’s foremost defender of stare decisis. That doctrine holds that today’s Court ought to stand by yesterday’s decisions. Respecting stare decisis sometimes means sticking to wrong decisions, because, as Justice Brandeis famously explained, it is usually “more important that the applicable rule of law be settled than that it be settled right.” Justice Kagan has described stare decisis as “a foundation stone of the rule of law.” Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 455 (2015).
Yet no justices contend that stare decisis is an inexorable command; all agree that it is at least sometimes appropriate to overturn binding precedent. Indeed, a case decided by the Supreme Court this past term, Edwards v. Vannoy, suggests that Justice Kagan is not the strong stare decisis adherent she claims to be. Rather, the evidence suggests that Kagan’s stare decisis posture is largely dictated by a desire to prevent an increasingly conservative Supreme Court from overturning precedents she strongly supports. Her inconsistent stance ought to be kept in mind when, as is inevitable, Kagan attempts to play the stare decisis card in response to efforts by judicial originalists to overturn precedents that enfeeble important constitutional principles.
Stare Decisis and Unanimous Juries
Justice Kagan brandished her stare decisis credentials in Ramos v. Louisiana, a 2020 decision holding that a state-court jury must be unanimous to convict a criminal defendant. As a justice who often supports the rights of criminal defendants, Kagan might have been expected to support the majority’s decision that Evangalisto Ramos’s conviction by a less-than-unanimous jury violated his Sixth Amendment rights.
Instead, Kagan joined Justice Alito’s dissent, arguing that stare decisis required the Court to adhere to Apodaca v. Oregon, a 1972 decision that permitted non-unanimous verdicts in state criminal trials. The dissent noted that Apodaca had been on the books for 50 years and argued that the court ought to adhere to the decision because state courts had “massively” and reasonably relied on Apodaca to conduct criminal trials in thousands of cases. The dissent concluded that “the courts of Louisiana and Oregon are almost sure to be overwhelmed” if the Ramos decision ended up allowing prisoners to challenge their convictions on collateral review; Alito and Kagan argued that those potential consequences weighed against overturning Apodaca.
Edwards v. Vannoy: The Follow-up to Ramos
The collateral-review issue warned of by the Ramos dissenters inevitably reached the Supreme Court the following year, in Edwards v. Vannoy. A Louisiana prisoner, found guilty (by an 11-1 jury vote) of armed robbery, rape, and kidnapping in 2007, sought collateral review of his conviction 13 years later based on the 2020 Ramos decision. One might have expected Justice Kagan—based on her Ramos dissent—to conclude that it would be patently unfair to Louisiana to overturn a long-final criminal conviction obtained in reasonable reliance on Apodaca. But although the majority held that the Ramos jury-unanimity rule does not apply retroactively on federal collateral review, Kagan wrote a stinging dissent. While just a year earlier, Kagan had concluded (in dissent) that the rights of criminal defendants were not so weighty as to outweigh the stare decisis rationale for overturning Apodaca, her Edwards dissent now viewed the Ramos majority as a “watershed” decision that “vindicated core principles of racial justice.” Edwards, 141 S. Ct. at 1574.
What accounts for Justice Kagan’s sudden about-face? The most logical conclusion is that her 2020 Ramos dissent was a faux dissent. She voted to affirm Ramos’s conviction, secure in the knowledge that her dissenting vote would not prevent the conviction from being overturned—while at the same time allowing her to place another arrow in her stare decisis quiver. It was if she were saying, “You see, I stand by stare decisis even when the result cuts against my normal sympathy for the rights of criminal defendants, so you too should respect stare decisis without regard to your view of the underlying merits.”
There is no other reasonable explanation. Kagan’s heated dissent in Edwards is inexplicable if she really believed, as the Ramos dissent asserted, that a defendant’s constitutional rights to a unanimous verdict are not sufficiently weighty to overcome a state court’s interest in avoiding administrative chaos.
Kagan Takes on Justice Kavanaugh
That Justice Kagan is not as great a stare decisis purest as sometimes portrayed is further illustrated by her vitriolic response to Justice Kavanaugh’s majority decision in Edwards. Kavanaugh’s decision noted that, even without extending Ramos to prisoners challenging their convictions on collateral review, criminal defendants as a group were far better off than if the Court had adopted Kagan’s dissenting views in Ramos. Kagan took umbrage at that observation and responded with language far harsher than she usually employs:
The suggestion [that criminal defendants are better than “if my dissenting view had prevailed in Ramos”] is surprising. It treats judging as scorekeeping—and more, as scorekeeping about how much our decisions, or the aggregate of them, benefit a particular kind of party. … No one gets to bank capital for future cases; no one’s past decisions insulate them from criticism. The focus always is, or should be, getting the case before us right.
141 S. Ct. at 1581 (emphasis added).
Kagan here employs an effective debating tactic: when your opponent suggests an inconsistency in your position, don’t respond directly. Instead, you respond by challenging your opponent (e.g., you charge that Kavanaugh’s argument indicates that he is not really interested in “getting the case before us right”). But the stridency of Kagan’s language and her unwillingness to acknowledge even the possibility of an inconsistency between her views in Ramos and Edwards suggests extreme sensitivity about maintaining her reputation as a strong adherent of stare decisis—and an implicit recognition that her Ramos dissent could reasonably be viewed as insincere.
Stare Decisis in Upcoming Supreme Court Terms
Changes in Supreme Court personnel have led several justices to suggest that some existing Court precedents be re-examined. For example, Justice Gorsuch has urged the Court to cease deferring to Executive Branch interpretations of federal statutes and regulations (in Kisor v. Wilkie, 139 S. Ct. 2140 (2019), and elsewhere) and to impose strict constitutional limits on Congress’s authority to delegate its legislative powers to others (in Gundy v. United States, 139 S. Ct. 2116 (2019)). As the author of the majority opinions in both Kisor and Gundy, Justice Kagan has opposed such changes, citing stare decisis considerations. She has also repeatedly cited stare decisis in strongly supporting the Court’s existing abortion case law—a particularly hot button issue, now that the court has agreed to hear Dobbs v. Jackson Women’s Health Organization (a challenge to a restrictive Mississippi abortion statute) in its upcoming term.
None of this is to suggest that stare decisis is an unimportant principle or that Supreme Court justices should freely discard precedent whenever a majority of them conclude that it was wrongly decided. But Justice Kagan’s recent complaints about the Court’s insufficient adherence to stare decisis need to be seen for what they are: the cries of a justice upset by the overturning of precedents she strongly supports, not the cries of a stare decisis purist.