“I am not through regretting,” Justice David H. Souter wrote in 2009, that one of his dissents six years before “did not carry the day. But it did not, and I agree that the precedent of that case calls for the result reached here.”
That seems straightforward enough. Once an issue is decided, it is the law, and a justice on the losing side the first time around is obligated to follow the decision except in extraordinary circumstances.
Yet the opposite approach is common. Whether as a matter of principle, pique or personal privilege, justices often assume that an initial dissent permits them to stick to their positions indefinitely, or at least for a long time.
In 2002, for instance, Justice Stephen G. Breyer acknowledged that the logic of a decision from which he had dissented two years before, Apprendi v. New Jersey, required juries, not judges, to determine the facts supporting some mandatory sentences. But, Justice Breyer wrote, “I cannot yet accept” the earlier decision.
By last year, Justice Breyer’s position seemed to be softening. “Well, at some point I guess I have to accept Apprendi, because it’s the law and has been for some time,” he said at an argument.
On Sept. 26, the justices will decide which of the thousands of appeals that have piled up over the summer are worth their time. Among them is yet another case on the issue Justice Breyer was discussing.
It involves Jennifer Lynn Krieger, who pleaded guilty to giving a pain-medicine skin patch to a friend. The friend, Jennifer Ann Curry of West Frankfort, Ill., died after chewing the patch and taking an assortment of other drugs.
The average sentence for a first-time offender who admits to distributing drugs like the one in the patch is seven months. The mandatory minimum sentence when “death results,” though, is 20 years.
Ms. Krieger was not charged with causing her friend’s death. She denied doing so, and no jury ever addressed that question. But Judge J. Phil Gilbert of the Federal District Court in Benton, Ill., looked at the evidence on this point in connection with sentencing Ms. Krieger and found it more likely than not that Ms. Curry’s death had been caused by the patch.
Judge Gilbert went on to say that he would have ruled differently had the government been required to prove beyond a reasonable doubt that the patch had caused Ms. Curry’s death. Reasonable doubt is, of course, the standard that juries are instructed to use in criminal trials.
Judge Gilbert did not seem happy about where all of this left him. He said he was required to impose the 20-year sentence even though it was “unduly harsh.”
“One cannot escape the conclusion that Krieger, while convicted of distribution” of drugs, he wrote, “is being sentenced for homicide.”
An appeals court upheld the decision even as it noted that the law in this area hangs by a “precariously thin” thread, partly because “Justice Breyer’s dedication to his position” in the 2002 case “may be waning.”
For now, though, Justice Breyer is following an approach that some scholars call “perpetual dissent.” Such dissents can be problematic, Allison Orr Larsen wrote in 2008 in The George Mason Law Review.
It is one thing, she wrote, to cast a vote when a new issue reaches the court. There the justice’s job is to reach the correct result. It is another thing when the issue arises a second time. Now the question becomes whether there is a good enough reason to violate the doctrine of stare decisis, which says that precedents should be overturned only for a very good reason.
Dissenting a second time because you dissented the first time, Professor Larsen wrote, is not such a reason. “To factor in one’s individual track record on an issue,” she wrote, is “an example of political behavior.”
Perhaps it is only a coincidence, but Professor Larsen, who teaches law at William & Mary, served as a law clerk to Justice Souter and published her article a year before he issued his striking concurrence. Justice Souter announced his retirement a few weeks later.
In her study, Professor Larsen found that every member of the court led by Chief Justice William H. Rehnquist from 1986 to 2005 had issued perpetual dissents. But she was unable to find a pattern in what she called a rampant but inconsistent practice.
The intensity of a justice’s commitment to a position did not seem to explain the issuance of such dissents. Nor did the freshness of the precedent at issue, or how closely divided the justices were.
The dissents were, instead, often simply an attempt to remain internally consistent.
Seth Stern and Stephen Wermiel described this tendency in their recent biography of Justice William J. Brennan Jr., who died in 1997. In the justice’s later years, “his enormous body of opinions guided his clerks except in the rare instances when a new issue arose,” they wrote. “The guiding principle was not to contradict his prior opinions.”
That is a principle. But, as Justice Souter’s concurrence two years ago suggested, it is not always a legitimate one.