Title: Private-Rights Litigation and the Normative Foundations of Durable Constitutional Precedent
Abstract: This chapter contends that there is both a causal correlation and a normative relationship between the relative ease of obtaining a Supreme Court precedent and the relative durability of that precedent. Public-law scholars often argue that justiciability barriers should be lowered to allow the Court to rule on important constitutional issues. The author contends, however, that lowering justiciability barriers has the unintended consequence of making Court decisions more vulnerable to overruling in subsequent cases, after an intervening change in the Court’s composition. In contrast, preserving the justiciability requirements associated with traditional private-rights adjudication makes rulings more costly to obtain but also more resistant to subsequent overruling. The author draws a contrast with the Court’s Chevron doctrine of deference to federal agency decisions, which decreases both the cost of obtaining favorable policies and the durability of those policies. And he suggests that precedents that are difficult to obtain for justiciability reasons therefore should, as a normative matter, be treated with greater deference by subsequent Courts.