Chapter 2: Explaining the Interpretation of Precedent

Recall from chapter 1 that the Court’s treatment of precedent takes two broad forms, positive interpretation and negative interpretation. First, the Court can interpret a precedent positively by relying on it as legal authority and thus broaden its reach or at least reiterate its continuing legal relevance. When doing so, for example, the Court can indicate that a precedent is controlling or determinative for a type of dispute (Aldisert 1990; Freed 1996; Baum 2001, 142). Second, the Court can negatively interpret a precedent by restricting its reach. For instance, the Court can distinguish a precedent by finding it inapplicable to a new factual scenario or limit a precedent by restating the legal rule in a more limited way (see Gerhardt 1991, 98-109; Maltz 1988, 382-388; Murphy and Pritchett 1979, 491-495). Our specific goal in this chapter is to provide an explanation for the circumstances under which the Court will interpret a precedent either positively or negatively. We base our theoretical argument on two premises. First, justices interpret precedent to influence the current state of legal policy (Brenner and Spaeth 1995; Johnson 1986; Epstein and Kobylka 1992; McGuire and MacKuen 2001; Wahlbeck 1997). By interpreting precedent, the Court can alter the scope and authority of existing legal rules and, in doing so, influence how other decision makers view and implement them. The Court’s interpretation of precedent can influence lower court judges, non-judicial actors, and, perhaps to a lesser extent, future Supreme Court justices. Thus, by interpreting precedent, and changing the existing legal status quo in the process, the Court can influence present and future distributional outcomes. The second reason justices interpret precedent is to justify the new policies established in their current opinions (Friedman et al. 1981; Johnson 1987; Walsh 1997). The American public, especially its attentive members, expects the Court to base its decisions on legally-relevant