For some time I have been working on the problem of judicial criticism, focusing especially on the question: What is it in the work of a judge that leads us to admire a judicial opinion with the result of which we disagree, or to condemn an opinion that "comes out" the way we would do if we were charged with the responsibility of decision?' The response I have been making is that this kind of judicial excellence (and its opposite too) lies in the sort of social and intellectual action in which the opinion engages: in the character the court defines for itself and for its various audiences; in the relations it creates with those to whom, and those about whom, it speaks (including those who have created the texts that it takes as authoritative); and in the kind of conversational community it thus establishes, for it is in the conversation by which it works that the law has its life. The opinion enacts a way of imagining and participating in the world, and it is in this act of imagination made real that its deepest meaning lies. One way to put this point is to borrow from John Dewey's remark that "democracy begins in conversation," and ask how far the conversation that a particular opinion seems to initiate or invite can be said to be one in which democracy begins and has its life, and how far it makes active political and social principles of a different kind. This, or something like it, is what I think we mean when we speak of the law not simply as a regime of rules or as a set of choices made by officials, but as a part of our culture which is to be regarded as the proper object of respect, or even veneration, as an achievement in its way as worthy of esteem as art and literature. In this article I continue this general effort by focusing on one particular aspect of judicial work, namely the way in which the Supreme Court reads, and should read, those of its own cases that serve as precedents for its judgment in constitutional cases. For the question for the Court is normally not simply what the Constitution means as an abstract matter, as much of our talk about constitu- tional interpretation seems to assume, but what it should be taken to mean given its interpretive history, which has an authority of its own. In addressing this question the Court establishes a relation not only with the constitutional text but with the discourse, and with the other texts, by which it is interpreted. What kind of relation should this be? To address this question I shall turn to United States v. White, not the most famous case in the world but for our purposes of deep interest, for it provides us with three opinions that define with extraordinary clarity three distinct ways of reading relevant precedent and in so doing presents us in a fresh way with the question how prior judicial opinions should be read: how they should be inter- preted as single texts, and even more importantly, how a set of opinions, decided across time, should be interpreted, with particular attention to the conflicts among them. Sometimes, as here, the question has an especially dramatic focus: When-if ever-should a case be overruled, or be regarded as having already been overruled, and upon what authority?
J. Boyd White,
Judging the Judges: Three Opinions,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol92/iss3/5