We are nearing the end of June so talk of precedent is in the air. In just the last week, both Justices Thomas and Kagan have defended conflicting theories of stare decisis; the Supreme Court — I think — effectively overruled one case and — I know — openly overruled another; and four of the justices expressed some willingness to revisit aspects of the nondelegation doctrine. These are the sorts of happenings that get folks chatting.

It seems to me, however, that too many related — but still separate — ideas are grouped under the umbrella title of “precedent.” So this week I’ve decided to spend some time thinking about how precedent works. It turns out the concept can get pretty complicated pretty quickly. For instance, a jurist can follow a case without saying anything beyond citing it. This happens all the time. The jurist can also distinguish it. This also happens all the time. Pause, however, to consider those everyday events. A jurist can extend a precedent under the guise of simply applying it. A court can also narrow a precedent under the guise of distinguishing it. And at some point, a case can be narrowed so much that it is overruled for all practical purposes. And a case can be expanded so much that it becomes something else altogether. Here, I’m not going to come up with the test for what is a holding and what is dicta. But when we talk about precedent, it is important to think beyond magic words like “hereby overruled.”

Consider, for instance, Kisor v. Wilkie. The formal question is whether the Supreme Court should overrule Auer and Seminole Rock. So we hear a lot of talk about stare decisis. Yet is that the right way to think about it? Auer, after all, itself departed from Seminole Rock; indeed, it is “Seminole Rock on steroids.” If the Court returns to the original version of Seminole Rock, couldn’t one say that is faithful adherence to precedent? Or is there a last-in-time rule? How does this work — and how should it work? Similarly, Justices Breyer and Kagan have recently defended stare decisis. Yet between those two opinions, they both joined a third decision that overruled precedent in every real respect but didn’t use the magic words. Shouldn’t that be part of the conversation too? And is it okay to refuse to take a precedent “to the limit of its logic” (Justice Alito’s position) — or is that “faux judicial restraint” (as Justice Scalia believed)? I’m not trying to pick on anyone; law is complicated. But it seems to me that we should think harder about what we mean by precedent.

Precedent is even more complicated when we move beyond Supreme Court cases. The Supreme Court, after all, always sits en banc; it has no panels. Because members of a circuit court do not sit en banc in all cases, “the most important characteristic of a collegial appellate court is careful attention, respect, and adherence to precedent.” But how exactly does that work in practice? The D.C. Circuit issued a number of opinions this week. It’s interesting to think about how the Court’s decisions touch on different aspects of precedent.

Perhaps most notably, Judge Katsas dissented from the en banc Court’s refusal to rehear Philipp v. Federal Republic of Germany. Here is how he began his dissent (a dissent, by the way, that may be quoted in a future cert petition):

This is an express challenge to precedent.* Express challenges are rare for the D.C. Circuit.

Other cases address precedent in subtler ways. Indeed, applying precedent sometimes can be challenging because the law itself is muddy. Consider In re: U.S. Office of Personnel Management (per curiam, Judges Tatel and Millett; Judge Williams dissented on standing grounds). This is a complicated case about data security. As I was reading it, I was struck by these two paragraphs:

Is that enough to be greater than “gross negligence”? It’s hard to say because the line between willful indifference and gross negligence, especially as applied, can be pretty darn fuzzy — all the more so because the same facts that show gross negligence can also be evidence of willfulness. The panel did its best with a hard standard.

(For what it is worth, you should definitely read Judge Williams’ dissent, which contains, inter alia, a great discussion of the propriety of “John Doe” suits; to stick to our theme, his dissent briefly touches on what counts as dicta.)

Next, let’s consider the line between distinguishing precedent and overruling it sub silentio. Qassim v. Trump presents this issue starkly. Does the Due Process Clause apply for detainees held at Guantanamo Bay? Ten years ago, in Kiyemba v. Obama, the Court said this:

The Supreme Court denied cert when the panel re-released an opinion with the same language. In light of that language, a number of district court judges have concluded, unsurprisingly, that the Due Process Clause does not apply in these cases.

Today, however, a panel of the Court (per Judge Millett, joined by Judges Pillard and Edwards) limited that language to substantive due process, not procedural due process:

Hmmmm … I wonder what Judges Randolph and Henderson (the panel majority in Kiyemba) think of today’s decision.

Azima v. Rak Investment Authority — per Judge Griffith, joined by Judges Millett and Edwards — addresses whether a suit should be heard in England instead of the United States. Although not addressing much D.C. Circuit precedent (presumably because there isn’t much of it on this subject), the Court did touch on the concept of precedent:

In NY Republican State Committee v. SEC, the majority (Judge Ginsburg, joined by Judge Pillard) and the dissent disagreed about how to be faithful to precedent. The majority rejected a First Amendment challenge to an SEC rule that regulates certain types of “broker-dealers who act as ‘placement agents’ — i.e., individuals and firms that investment advisers hire to help them secure contracts advising a government entity. The Rule prohibits a placement agent from accepting compensation for soliciting government business from certain candidates and elected officials within two years of having contributed to such an official’s electoral campaign or to the transition or inaugural expenses of a successful candidate.” Constitutional? Yes:

Judge Sentelle, in dissent, didn’t dispute the substantive analysis. But he did say that the Court’s standing analysis conflicts with the Supreme Court’s test. This is what the majority had to say about standing:

And here is part of Judge Sentelle’s response:

Finally, we come to Federal Education Association v. FLRA. Judge Pillard, joined by Chief Judge Garland and Judge Wilkins, rejected the FLRA’s conclusion based on lack of substantial evidence. The Court also included this very interesting discussion:

That paragraph isn’t especially related to precedent. But I wouldn’t be surprised to see it cited in future cases.

And now enjoy the weekend; I suspect there will be more talk about precedent next week.

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* The software we use for Notice & Comment doesn’t allow me to make embedded files look the same on the screen. I apologize.

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