The post, by Prof. Richard Re (University of Virginia), was found on the Re’s Judicata blog. I thought it was very interesting. I asked Prof. Re to repost it and he generously accepted.
Recent arguments were heard in Court Ysleta del Sur Pueblo v. Texas, a statutory-interpretation case about Indian tribes’ ability to regulate or conduct games like bingo. The most important aspect of this case, however, was Justice Kagan’s broader-applicable rumination. It’s here:
JUSTICE KAGAN (Replying to Justice Alito): My intention is to place you beyond the reach of this case. Justice Alito however raised an interesting question. It’s something that has been on my mind a lot lately.
Of course, they’re everywhere. They don’t just focus on the Indian Canon. Next week, the supposed major question canon will be discussed. Other canons exist.
You’ll see a lot of these canons in Justice Scalia’s book. Some are helpful to the government. Some of them are harmful to the government.
Do you think there is a way for the government to enter and ask, like, How can we reconcile our opinions about all these different types of canons. You might just want to throw them all away.
MR. YANG: Well –
JUSTICE KAGAN What are we doing?
Justice Kagan was recently the Court’s staunchest proponent for stare decisis. That commitment to precedent also extended to issues of interpretation and method, like Auer deference or stare decisis. Kagan suggested “toss”.[ing] out” all substantive canons—a set of legal principles that are indeed “all over the place”—is surprising.
Is there a reason for this sudden change? These are just a few possible explanations.
Kagan may first have realized through experience that it is impossible to reconcile substantive canons[d]”” perhaps because they are contradictory in effect or purpose. Perhaps this realistic-seeming decision could make Kagan even textualist more than Scalia. Scalia (she notes) was a great user of substantive canons.
Kagan could also believe that “the pretended major questions canon” is essential and that she would be willing to ignore any legal principles that might prevent her from doing so. The strategic reasons for dumping all of the other substantive canons include their bad reasoning, and potential consequences.
Kagan could have stopped trying to achieve strong stare decisis. Many commentators speculate that Kagan tried to make stare decisis a serious endeavor to save face. Roe and other left rulings from being overruled. Perhaps this effort is finally futile.
These three possibilities can all be linked. If Kagan thinks she cannot win key votes by using stare decisis then it might be time to appeal the majority’s textualism to slow down the march of major question doctrine across the administrative government. And that strategy might be especially targeted at Justice Barrett, who—as Will Baude points out—has written an important article criticizing substantive canons. In this perspective, one contingent strategy replaces another.
However, Kagan seems to have a deep personal commitment towards stare decisis of late. This may indicate that there is a deeper change or disillusionment. Kagan might view the Court as doing great damage because it abandons its own textualist doctrine and seems to be unwilling or unable to adhere strictly with stare decisis. If the majority doesn’t believe in once-established practices, then why would anyone else?