At Dorf on Law, Michael Dorf: The Distinction Between Failure to Extend a Precedent and Cutting Back on it — A Comment on Egbert v. Boule (commenting on last week's Supreme Court oral argument). From the core of the discussion:
But what's an extension versus an application? Under the current precedents, courts are supposed to first determine whether the plaintiff's claims arise in a "new context" or involve a "new category of defendants." …
Justice Breyer asked Egbert's lawyer a series of questions about trivial differences that obviously should not amount to a new context: If the officers' conduct in Bivens occurred on a Wednesday, surely identical conduct on a Thursday would fall within Bivens rather than involving an extension. What about if instead of looking for drugs, the officers are looking for weapons? For undocumented immigrants?
To her credit, Egbert's lawyer conceded that the day of the week or month of the year couldn't possibly make a difference. But she began to push back when the law enforcement purpose shifted. I understand why she did so to try to win the case, but the move is at least somewhat perplexing. Whether we have a new context is not simply a descriptive question. It's also–indeed primarily–a normative one. The reason we think a Thursday search is not different from a Wednesday search is that nothing relevant turns on the day of the week. Does it matter whether the officers are searching for weapons rather than drugs? That's not an obviously irrelevant detail in the way that the day or month is, but neither is it obviously relevant. The answer could depend on any number of factors, including how dangerous the search is, how important the government interest is, whether Congress has indicated priorities, etc.
Figuring out whether some asserted distinction between the context of Case A and the context of Case B makes a difference or is instead what we lawyers call a distinction without a difference is extremely familiar. It's at the heart of the common law method and thus should be a natural fit for deciding the availability of a Bivens action, which is a question of federal common law. Indeed, even if this were not a federal common law question but instead a question of statutory or constitutional construction, the process of sorting between relevant and irrelevant distinctions would be familiar, because courts in the U.S. (and other legal systems descended from England) use the common law method in all manner of cases.
I mostly agree (see my discussion on establishing and extending custom here). But I suspect Professor Dorf and I draw different conclusions. My view is that the decision whether it's an extension or not (that is, whether the distinction matters) is a normative judgment unless essentially everyone would agree it's not. As a result, precedent (and more broadly custom) can't provide an objective approach to adjudication except in relatively easy cases. (Professor Dorf's reference to the common law suggests he might agree, but other things he's written make me think maybe he doesn't). And, importantly for originalism, this view indicates that a precedent/custom-based system isn't a middle way between originalism and living constitutionalism. It's really just living constitutionalism (if precedents and practices are read broadly) or else originalism limited by specific prior decisions and practices (if they aren't read broadly).
Posted at 6:23 AM