By Jimmy Hoover
October 7, 2019
It can be hard to get the nine justices of the U.S. Supreme Court to agree on something. Luckily for lawyers, they only need to convince five to win.
That's what lawyer Paul Hughes was thinking while framing an appeal for a Vietnam veteran who was denied retroactive disability benefits for post-traumatic stress disorder last term.
Hughes and his former team at Mayer Brown LLP designed their petition as a challenge to the court's 1997 decision in Auer v. Robbins. Auer was a mammoth of administrative law, standing for the proposition that judges should almost always defer to how federal agencies interpret their own rules.
This straightforward idea had long been a boon to government regulators in hundreds, if not thousands, of courtroom battles that hinged on the meaning of a disputed phrase in a rulebook. As long as their interpretation wasn't "plainly erroneous or inconsistent with the regulation," voilà, judges had to accept it.
In the case of Hughes' client, the Federal Circuit had deferred to the Department of Veterans Affairs' interpretation of a regulation and upheld the denial of benefits to the veteran, James Kisor.
Asking the court to overturn Auer would have been considered foolhardy just a few years ago, but a number of recent signals from the conservative justices taking a dim view of the doctrine left Hughes thinking that he might just be able to get to five.
In the end, Auer survived, but not without a beating. The resulting majority opinion by Justice Elena Kagan vastly narrowed the circumstances in which judges should defer to agency interpretations, leaving Auer — in the words of Justice Neil Gorsuch — "on life support."
But for Chief Justice John Roberts, it may all be part of the plan.
Heeding the Signals
Asking the Supreme Court to overturn past precedent is considered very bold, and, historically, unwise, said Orrick Herrington & Sutcliffe LLP partner Kelsi Corkran in an interview over the summer. The court sets its own docket, and generally only considers those cases that involve legal questions that have divided the courts or those of national importance.
But last term, the court granted four petitions directly calling for reconsideration of Supreme Court precedent. Hughes' case, Kisor v. Willkie, was one of them. The conservative justices had signaled their willingness to revisit the doctrine, and the Supreme Court bar, it seemed, was listening.
"It was essential to our strategy that justices had previously invited challenges to Auer deference," Hughes, now a partner at McDermott Will & Emery LLP, said in an interview earlier this year. "If those decisions had not been written, we would have framed the case differently."
Justice Samuel Alito Jr. had previously written there were "substantial reasons" why Auer may be incorrect. Justice Roberts had floated the idea of reconsidering it "in an appropriate case." And in 2018, Justice Gorsuch joined a dissent by Justice Clarence Thomas when the court declined a chance to revisit it. It seemed the only real question mark was Justice Brett Kavanaugh, but even he had predicted just two years before that Auer would "someday be overturned."
Sprinkling in criticism of the doctrine throughout their opinions over the course of several years, the Republican appointees had slowly chipped away at Auer's former status as a bedrock of administrative law, giving litigants like Kisor the chance to come out and ask the court to overrule the decision directly.
Compiling a paper trail that a future majority can use as a basis to overturn precedent is a strategy that the conservative Roberts court has deployed with remarkable success, and one the justices are sure to employ as the court reconvenes this week for the 2019 term.
According to Brooklyn Law School professor William Araiza, Justice Roberts often plays a central role in this process, joining opinions narrowing certain precedents until one day he can overrule them. So seems to be the case with Kisor.
"He could be saying, 'back in Kisor we talked about the problems with Auer deference, we narrowed Auer deference, but today in 2021 it should not be a surprise to anyone that we are getting rid of Auer deference because we warned everyone that we weren't that crazy about it.'"
"I think that's part of his longer-term strategy," he said.
These "signals," as they're known by the sophisticated members of the Supreme Court bar who hang on to the justices' every word, seem to have increased since President Donald Trump's two appointees, Justices Gorsuch and Kavanaugh, joined the bench.
A Law360 analysis found there have been more cases lately where four or more justices decide to write separate opinions to stake out their positions in the law. In each of the last two terms, there were four cases that generated four or more separate opinions. This marked an uptick from the two prior terms, which each had just one case that generated that many opinions.
In the most extreme cases, justices can't reach a consensus and rule on the case without producing a majority opinion, leaving lower courts to grapple with ambiguity on which opinion is controlling. Last term, the portion of cases that resulted in a plurality reached its highest level since the start of Justice Roberts' tenure as chief.
The case that generated the most opinions was American Legion v. American Humanist Association, in which the court ruled 7-2 that a cross memorial honoring World War I dead did not violate the First Amendment. The case, which drew fierce debate about the separation of church and state in modern America, had a little bit of everything — a partial majority written by Justice Alito and joined by Justices Roberts, Kavanaugh, Kagan and Stephen G. Breyer, that included a partial plurality without Justice Kagan.
In four separate opinions, the conservative justices blasted a longstanding First Amendment doctrine that some see as creating too stringent a prohibition against government objects or practices with religious aspects.
Justice Alito's opinion for the court noted that the so-called Lemon test presents "daunting problems" and has been criticized by a number of justices and scholars. Justice Brett Kavanaugh added to the fray by calling the test "not good law" in a concurrence. By the time the dust settled on the decision in American Legion, the court had issued six separate opinions in addition to the majority, the most in at least 10 years. It seemed that the Lemon test, which dates back to 1971, was ripe for overruling.
The Supreme Court's "shadow docket" is another forum where an emboldened conservative majority has been sowing the seeds of future overrulings. In recent years, there has been a spike in opinions relating to orders, where justices expound on the weekly decisions to take up or reject pending cases. The court issued 43 last term, the most in more than a decade.
While Justice Sonia Sotomayor has written the most, Justice Thomas is perhaps the most effective at using them to steer future decisions. Last term vindicated his earlier dissents to the court's decision to decline previous challenges to Auer deference and a takings case from the 1980s known as Williamson County, which was overturned by the conservative majority in Knick v. Scott this year.
The court's conservative firebrand has recently trained his sights on a more formidable target: New York Times v. Sullivan. In February, Justice Thomas launched a broadside against the landmark First Amendment ruling from 1964, which made it much more difficult for public figures to sue members of the press for libel.
According to Araiza, Justice Thomas' so-called extreme positions become less over time as the more moderate Republican appointees like Justice Roberts continue to move the law in his direction.
Justice Roberts "can use more extreme members of the court, like Thomas, for example, and say, 'I'm not with Justice Thomas on this, I think he's a little extreme, but you know I kinda see what he's saying,'" Araiza said.
"And then ... the next case and the next case and now we have intervening precedent that actually makes Thomas' place the more natural place for the next case," he said.
In Defense of Precedent
This strategy has not gone unnoticed by the court's liberal members, inspiring fierce debate in recent months about the future of stare decisis, or respect for precedent.
The most spirited defense might have come from Justice Breyer during January's oral argument in FTB v. Hyatt, a tax case in which California asked the court to overrule its 1979 decision in Nevada v. Hall and declare that states cannot be sued in each other's courts.
Perhaps sensing his conservative colleagues were leaning in that direction, Justice Breyer offered a stark warning. Lawyers rely on the precedent of the Supreme Court to advise their clients about the law, he said. If the court starts abandoning its old decisions, it could open the floodgates for lawyers to go after precedents their clients don't like.
"Every time we overrule a case, it's like a little chink in the armor," he said.
In a public appearance in July at Georgetown University Law Center, Justice Kagan framed the issue as "one of humility."
"There's something maybe a little bit immodest about saying, 'Notwithstanding that 40 people have done it this way, I just have a better idea of how to do it," she said.
During the January arguments in FTB v. Yatt, Justice Alito offered a different view. Wouldn't the public have more respect for a court that says "we're not perfect, and when we look back and we think we made a big mistake, we're going to go back and correct it?" he said.
The debate about stare decisis stretches back to the country's founding. Alexander Hamilton said judges should be "bound down by strict rules and precedents" to "avoid an arbitrary discretion."
But Chief Justice John Marshall later said it was a matter of "mere legal discretion," and flare-ups over the weight given precedent have occurred throughout the court's history, from the end of the "Lochner era" of laissez-faire jurisprudence in the 1930s to the struggle to overturn the 1973 abortion ruling Roe v. Wade.
The court's willingness to revisit several of its decisions last term added new fuel to the debate, leading to speculation about whether the new conservative majority will begin taking aim at every precedent the five justices dislike.
While those cases arose in different contexts, "maybe collectively what [the justices are] signaling is a greater willingness to consider past precedent," said Corkran, who is a former clerk to Justice Ruth Bader Ginsburg.
Some of the precedents the justices have overturned or altered have been more recent — in one 2014 case, Johnson v. U.S., the Roberts court overturned two of its own decisions — but most have been on the books for at least 20 years.
That was the case with Williamson County, a 1985 ruling that required landowners to first bring their claims in state court before suing the government in federal court for violating the Fifth Amendment's takings clause.
Property rights groups like the Pacific Legal Foundation had been fighting the Williamson County decision for decades, and in 2016, Justice Thomas called for reconsideration of the case in a dissent to a cert denial. Williamson County, he said, "appears to be inconsistent with the text and original meaning" of the takings clause.
The justices agreed to hear the challenge last term and eventually voted 5-4 to overturn Williamson County in yet another vindication of Justice Thomas' earlier dissent.
"It was like climbing a mountain and never knowing if you were going to reach the top," said J. David Breemer of Pacific Legal Foundation, landowner Rose Mary Knick's attorney, about his effort to overturn Williamson County.
The overruling of Williamson County enraged Justice Kagan, especially because the justices based their reasoning on an earlier 5-4 decision overturning an important labor precedent.
"If that is the way the majority means to proceed — relying on one subversion of stare decisis to support another — we may as well not have principles about precedents at all," Justice Kagan fumed in her dissent in Knick.
The upcoming term is unlikely to feature as many precedent challenges as the previous one. Daniel Volchok, a partner at WilmerHale, said challenging high court precedent remains a risky case strategy, and while this past term "does inevitably give some encouragement" to lawyers seeking to overturn past decisions, most of those requests are still likely to be rejected.
But that won't stem the court's precedent battles for long.
In the years to come, University of California, Berkeley School of Law Dean Erwin Chemerinsky said he sees major precedent reversals in the areas of affirmative action and the Fourth Amendment. For years, originalists like the late Justice Antonin Scalia decried the Warren court's watershed 1961 ruling in Mapp v. Ohio that suppresses evidence taken in violation of someone's Fourth Amendment rights. With the court now leaning further to the right, that standard could be revoked, Chemerinksy said.
One thing's for certain.
"There's no doubt that next term and for years to come a key issue with regard to the Roberts court will be how much weight it will give to precedent," he said.
Jimmy Hoover is Law360's senior U.S. Supreme Court reporter. He last wrote about how President Trump's appointments to the lower federal appellate courts are impacting the law. Follow him on Twitter. Data analysis by Amanda James and Annie Pancak. Graphics by Chris Yates. Editing by Jocelyn Allison and John Campbell.