I stumbled across Richard Re’s 2023 Personal Precedent at the Supreme Court, exploring the role of individual Justices’ personal jurisprudence in SCOTUS decisionmaking.
It made me think about the argument in Olivier v. City of Brandon on the application of Heck to prospective relief. Justice Scalia’s name came up 18 times during the argument. He wrote the majority opinions in Heck and in several progeny cases. Thus, although the precedent at issue is “institutional”–Scalia wrote for the Court, not for himself–the argument treated Heck as “his” precedent and the current inquiry as what “he” meant by the broad “necessarily implies the invalidity” language. Invoking Scalia by name carried more weight than invoking the Court as an institution.
Some of this reflects Scalia Worship by petitioner’s counsel, Allyson Ho. She name-checked Nino nine times; the other nine came from respondent’s counsel (2) and various Justices (7), who might have been discussing the issues on the terms petitioner introduced.
Nevertheless, this offers a form of the personal/institutional divide that Re does not appear to cover in his paper. Institutional precedent becomes bound up with its author, such that the author’s personal imprimatur, rather than the Court’s adoption, gives the opinion precedential force. And when the task of understanding and applying that precedent requires divining the personal intent of the author rather than the intent of the institution. Or maybe this is another point in favor of Suzanna Sherry’s argument for eliminating personal precedent and the resulting cult of the celebrity justice.