The Scope of Precedent

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court's broad pronouncements. These phenomena cannot be explained by-and, indeed, oftentimes subvert-the classic distinction between binding holdings and dispensable dicta.This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent's forward-looking effect should not depend on the superficial categories of holding and dictum. Instead, it should reflect deeper normative commitments that define the nature of adjudication within American legal culture.The account that emerges is one in which the scope of precedent is inextricably linked to interpretive theory and constitutional understandings. Divergent methods of interpretation, from originalism to common law constitutionalism and beyond, carry distinctive implications for describing a precedent's constraining effect. So, too, do various methods of interpretation in the statutory and common law contexts. Ultimately, what should determine the scope of precedent is the set of premises-regarding the judicial role, the separation of powers, and the relevance of history, morality, and policy-that informs a judge's methodological choices.IntroductionWhether to overrule a dubious precedent is one of the most significant and complex questions that judges confront.' The topic has, quite properly, received considerable attention in case law,2 scholarly commentary,3 and po- litical discourse.4But there is a complementary question of equal significance-and equal complexity-whose nuances have received less attention in recent scholar- ship.5 That question is whether a given precedent applies to a newly arising dispute.6 If the answer is yes, the prospect of overruling becomes relevant. If the answer is no, it is unnecessary to assess the costs and benefits of deviat- ing from settled law. A precedent's scope of applicability thus presents a matter of threshold importance.7Issues of precedential scope are ever present and often controversial. Should a decision dealing with the use of affirmative action at the University of Michigan apply to the University of Texas notwithstanding differences in the schools' demographic conditions?8 Should a decision protecting a corpo- ration's right to participate in political referenda apply to candidate elec- tions?9 To the rights of labor unions?10 Should a decision striking down a federal statute that rejects same-sex marriage apply to comparable statutes enacted by the states?11These questions aim to define the scope of precedent. The standard ac- count of scope begins with the distinction between binding holdings and nonessential dicta: judicial holdings are entitled to deference from future courts, while everything else is dispensable.12 Indeed, the Supreme Court recently reaffirmed that dicta from its prior opinions may be freely disre- garded. Simply because the Court has "once written dicta calling a tomato a vegetable" does not mean that subsequent judges are "bound to deny that it is fruit forever after."13Nevertheless, the Court's practice often departs from these general prin- ciples. The inconsistency runs deeper than the well-chronicled difficulty of sorting dicta from holdings in particular cases.14 To be sure, the Court goes to great lengths to characterize certain statements as mere dicta that can be jettisoned without reservation. But in many other cases, the Court defers to elements of its prior opinions that extend far beyond the narrow application of a legal rule to a discrete set of facts.15 Those elements include doctrinal frameworks, elaborate judicial instructions, and broadly articulated ratio- nales. …