Settled Law

Article — Volume 107, Issue 1

107 Va. L. Rev. 57
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*Mr. Nunn is an Assistant Professor, University of Arkansas School of Law. Mr. Trammell is an Associate Professor, Washington and Lee University School of Law. For helpful discussion and comments on earlier drafts, we are grateful to Khaled Beydoun, Pamela Bookman, Kiel Brennan-Marquez, Zachary Clopton, Steve Clowney, David Marcus, Merritt McAlister, Urja Mittal, Jason Parkin, Daniel Rice, Matthew Shaw, and Larry Solum. We also thank Chris Chino for invaluable research assistance and the Virginia Law Review editors for their excellent work in bringing this project to fruition.Show More

Settled law” appears frequently in judicial opinions—sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.

We contend that settled law is actually a meaningful concept, even though it does not embody any single, unified idea. First, we argue that controlling law, which essentially corresponds to binding precedent, is a fundamentally distinct concept that is neither synonymous with nor a subset of settled law. Second, we draw on seminal jurisprudential theories to build a taxonomy of five frameworks that capture how legal actors can invoke settled law, both rhetorically and doctrinally. Third, we demonstrate how a clearer understanding of settled law can make doctrine more coherent and administrable. Situating certain doctrines within the appropriate frameworks, and not conflating controlling law and settled law, would resolve myriad doctrinal anomalies. Moreover, greater conceptual precision can improve political rhetoric during the confirmation process by promoting clearer dialogue and discouraging legal actors from talking past one another.


What does it mean to say that Roe v. Wade1.410 U.S. 113 (1973).Show More is “settled law”? Or Citizens United v. FEC?2.558 U.S. 310 (2010).Show More Or even Brown v. Board of Education?3.347 U.S. 483 (1954).Show More

The idea of settled law has played a pivotal role in Supreme Court confirmation hearings for more than thirty years, and it has animated myriad legal doctrines as far back as the eighteenth century.4.See, e.g., Penhallow v. Doane’s Adm’rs, 3 U.S. (3 Dall.) 54, 118 (1795) (Cushing, J.) (describing as “settled law and usage” the idea that “courts of Admiralty can carry into execution decrees of foreign Admiralties”).Show More Yet the meaning of settled law has proved stubbornly elusive. Does it refer simply to the idea that the Supreme Court has decided a particular issue, or does it connote something more enduring about particular precedents? Does it imply that a precedent is somehow “right”? Which courts (or other legal actors) have the power to settle the law? And how exactly does that happen?

Even though settled law had come up during earlier confirmation hearings,5.See, e.g., Nomination of Justice William Hubbs Rehnquist: Hearings Before the S. Comm. on the Judiciary, 99th Cong. 356 (1986) (statement of Rehnquist, J.) (declaring that the incorporation of the right to a speedy trial through the Fourteenth Amendment “is settled law, and [his] opinions reflect it”); Nomination of Judge Antonin Scalia: Hearings Before the S. Comm. on the Judiciary, 99th Cong. 83 (1986) (statement of Sen. Specter) (asking whether Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), “is a settled issue”); id. at 104 (statement of Sen. Biden) (“If it’s on the books, if it is settled constitutional law for an extended period of time, and the argument to overturn that settled constitutional principle does not in fact meet the test of on its face being consistent with what the correct constitutional principle is, do you have to stick with what the settled law is?”).Show More it first took center stage in the political arena during the Bork hearings. Under intense scrutiny about his academic writings, Judge Bork repeatedly tried to parry criticism of his controversial views by promising over and over that he would respect “settled law,” even if he disagreed with it.6.See, e.g., Nomination of Robert H. Bork To Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. 279 (1987) (statement of Bork, J.) (repeatedly calling Brandenburg v. Ohio, 395 U.S. 444 (1969),“settled”); id. at 327 (declaring that “I certainly have no desire to go running around trying to upset settled bodies of law”); id. at 423 (“It seems to me that the settled law is now that the person writing the book does not have to prove that it is political or any way connected to politics. The settled law is the Government has to prove it is obscene.”); id. at 428 (“I am not changing my criticism of [Brandenburg]. I just accept it as settled law.”); id. at 434 (“It’s settled law. . . . I have said that I accept that body of precedent and will apply it. That’s all I’ve said.”); id. at 438 (declaring that “some things are absolutely settled in the law” and that “[a]ny judge understands that you don’t tear those things up”); id. at 587 (“I accept them as settled law. I have not said that I agree with all of those opinions now, but they are settled law and as a judge that does it for me.”); id. at 667 (“I have repeatedly said there are some things that are too settled to be overturned.”).Show More And notably, Judge Bork used that term to mean something quite distinct from the familiar principles of stare decisis.7.See id. at 989 (statement of Sen. Specter) (“[Judge Bork] flatly made a commitment to accept settled law. On the privacy cases he has not made that commitment. He has talked about various considerations of reliance and stare decisis, but he has made no commitment on privacy . . . .”).Show More Since then, every Supreme Court nominee has faced questions about settled law, even as the term’s ambiguity has grown increasingly apparent.8.See infra notes 278–85 and accompanying text.Show More

Discussions of settled law have become even more prominent in recent years as President Trump’s judicial nominees faced pointed questions about whether they agreed with certain precedents or, at a minimum, regarded them as settled.9.SeeLaura Meckler & Robert Barnes, Trump Judicial Nominees Decline To EndorseBrown v. Board Under Senate Questioning, Wash. Post (May 16, 2019, 7:28 PM),­rse-brown-v-board-under-senate-questioning/2019/05/16/d5409d58-7732-11e9-b7ae-390de­4259661_story.html [] (describing how Sen. Blumenthal frequently asks whether nominees regard Brown as correct); Marcia Coyle, Revisiting Amy Coney Barrett Statements About Abortion Rights, Nat’l L.J. (Sept. 25, 2020, 3:12 PM),­ts-about-abortion-rights/?slreturn=20200908080816 [] (des­cribing how Sen. Blumenthal asked then-nominee Amy Coney Barrett if she “think[s] Roe v. Wade was correctly decided”).Show More Sometimes nominees have refused to engage.10 10.See Meckler & Barnes, supra note 9 (describing nominees who refused to directly answer Sen. Blumenthal’s question about Brown); see alsoAriane de Vogue, Judicial Nominees Are Changing Their Approach to the ‘Brown v. Board’ Question at Senate Hearings, CNN (Feb. 10, 2019),­inees/index.html [] (noting that in response to Sen. Blumenthal’s question about Brown, now-Judge Neomi Rao described the case as “longstanding precedent of the Supreme Court,” declared that it was “not appropriate” to comment on the “correctness of particular precedents,” but argued that “it’s hard for me to imagine a circumstance in which Brown v. Board would be overruled by the Supreme Court”).Show More On other occasions, Senators and nominees have appeared to use “settled law” in conspicuously different ways,11 11.For example, in 2010, then-Senator Sessions suggested that “settled law” connoted “a more firm acknowledgment of the power of that ruling” than mere “precedent” and asked then-U.S. Solicitor General Elena Kagan whether she was using “settled law” and “precedent” interchangeably. The Nomination of Elena Kagan To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 231 (2010) (statement of Sen. Sessions). She responded: “I don’t mean any difference.” Id. (statement of Elena Kagan, Solicitor General of the United States).Show More a phenomenon brought into stark relief during Justice Kavanaugh’s confirmation hearing. Responding to a question from Senator Feinstein, the future Justice declared that Roe v. Wade was “settled as a precedent of the Supreme Court, entitled to respect under principles of stare decisis.”12 12.C-SPAN, Supreme Court Nominee Brett Kavanaugh Confirmation Hearing, Day 2, Part 1, C-SPAN (Sept. 5, 2018),­inee-brett-kavanaugh-confirmation-hearing-day-2-part-1 [­MC] (relevant exchange occurring from 48:25 to 49:10).Show More The next day, The New York Times published a previously confidential e-mail from 2003 in which Kavanaugh had written: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so.”13 13.Charlie Savage, Leaked Kavanaugh Documents Discuss Abortion and Affirmative Action, N.Y. Times (Sept. 6, 2018),­kavanaugh-leaked-documents.html [].Show More These statements provided grist for some to call him disingenuous.14 14.See, e.g.,Igor Bobic, Susan Collins Downplays Brett Kavanaugh Email About Abortion Rights and ‘Settled Law’, HuffPost (Sept. 6, 2018, 4:58 PM),­entry/brett-kavanaugh-susan-collins-roe-v-wade_n_5b9165b1e4b0511db3e04121 [https://p­] (quoting Sen. Blumenthal urging undecided Republicans to “read this [email] and then tell [him] Judge Kavanaugh has been candid with [them]”).Show More Others argued that he was making distinct and mutually consistent claims—a prediction of whether the Court would revisit the abortion precedents versus an assessment of whether those precedents should stand undisturbed.15 15.See, e.g., id. (quoting Sen. Collins saying that Kavanaugh “was merely stating a fact, which is that three [Justices] on the [C]ourt were anti-Roe,” and “[i]f that’s the case and he was not expressing his view, then [she was] not sure what the point of it [was]”).Show More

Settled law is far more than an enigmatic buzzword that gets bandied about during confirmation hearings, though; it also serves an important structural role and has profound doctrinal implications. For example, lower-court judges often speak about their duty to follow the settled law of superior courts.16 16.See infra notes 26–27 and accompanying text.Show More Most surprisingly, an array of doctrines depend substantively on whether the law is “settled.” In the realm of constitutional torts, for instance, a plaintiff attempting to bring a Section 1983 claim usually must overcome the defendant’s qualified immunity by showing that the defendant violated a constitutional rule that was “clearly established” under “settled law.”17 17.District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018); see also id. at 591 (“The rule applied by [the court below] was not clearly established because it was not ‘settled law.’” (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991))).Show More So, too, settled law undergirds the circumstances when post-conviction relief is available,18 18.E.g., In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000) (holding that whether the settled law established the legality of a conviction is part of the Fourth Circuit’s three-prong test to determine the availability of a writ of habeas corpus).Show More lawyers’ ethical obligations under Rule 11,19 19.E.g., Pro. Mgmt. Assocs. v. KPMG LLP, 345 F.3d 1030, 1033 (8th Cir. 2003) (remanding and ordering the lower court to impose a Rule 11 sanction to a plaintiff’s counsel for ignoring the “well-settled law” of res judicata under the circumstances of the case).Show More standards of review,20 20.E.g., United States v. Gary, 954 F.3d 194, 202 (4th Cir. 2020) (quoting United States v. Ramirez-Castillo, 748 F.3d 205, 215 (4th Cir. 2014)) (holding that “if the settled law of the Supreme Court or this circuit establishes that an error has occurred,” the error satisfies the plain error standard of review).Show More and a host of other doctrines.21 21.See, e.g., Hunter v. Philip Morris USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (quoting Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007)) (fraudulent joinder).Show More Across these contexts, though, a firm understanding of what counts as settled law has proved chimerical.

Given the definitional morass, one might conclude that “‘settled law’ is just a euphemism.”22 22.Ilya Somin, Why “Settled Law” Isn’t Really Settled—and Why That’s Often a Good Thing, Reason: The Volokh Conspiracy (Sept. 9, 2018, 3:57 PM),­2018/09/09/why-settled-law-isnt-really-settled-and/ [­SU-3N4A].Show More On this view, the term is so capacious as to become meaningless, conveying nothing useful about the weight that precedent deserves or the conditions (if any) under which a court should overrule it.

Our principal goal is to show that settled law does coherent and powerful work, even though it resists a single, overarching definition. In fact, settled law makes sense only when one appreciates that it comprises several distinct notions that do not share a common attribute. A more precise understanding of this hydra-like term has the power to clarify doctrine and improve political rhetoric. What seem like conceptual oddities in a number of doctrines actually make good theoretical sense when viewed through the lens of settled law. Moreover, settled law can play a meaningful role in confirmation hearings, but only if legal actors fully grasp its multifaceted nature. It offers a productive way to explore how politicians, judicial nominees, and the general public understand the judicial role, including how the obligations of Supreme Court Justices differ from those of lower-court judges.

We begin in Part I by differentiating between two concepts that we call controlling law and settled law. Controlling law essentially refers to the concept of binding precedent, including in its most conspicuous manifestation: an inferior court’s duty to follow the precedents of superior courts. Although one might think of controlling law as a species of settled law, we argue that the two are actually distinct ideas that address very different questions and are, at most, only tangentially related. Much of the confusion about settled law, in fact, stems from conflating these concepts. Not allowing discussions of settled law to revert into the familiar language of controlling law is thus a critical first step.

Part II demonstrates that settled law is not just an empty euphemism, even though it doesn’t embrace a single idea. In fact, settled law makes sense only when one appreciates that it comprises several notions that do not share a common attribute.

On an intuitive level, the starkest divide lies between normative and descriptive claims about settled law. For example, someone might classify Brown as settled law, normatively, because it achieved the right substantive result. Or, irrespective of Brown’s fundamental correctness, one might view it as descriptively settled because everyone recognizes that it’s here to stay. Even within these broad categories, though, variation abounds. For example, calling Brown normatively settled could mean that the decision was consonant with the original meaning of the Fourteenth Amendment or, alternatively, that it achieved a socially desirable outcome by advancing the cause of racial justice. Calling Brown descriptively settled could mean that the Supreme Court has left the precedent undisturbed for more than fifty years, that a future Court is unlikely to overrule it, that principles of stare decisis have effectively entrenched it, or that it has achieved wide popular acceptance.

We bring theoretical rigor to this intuition about the descriptive-normative divide by overlaying it with seminal jurisprudential theories: formalism, realism, and legal process theory. Based on these theories, we develop a taxonomy of five concepts that “settled law” can embrace.

The first two concepts derive from legal formalism.23 23.See, e.g., Warren Sandmann, The Argumentative Creation of Individual Liberty, 23 Hastings Const. L.Q. 637, 645 (1996) (“Legal formalism . . . is in its many guises one of the more dominant approaches to judicial decisionmaking.”).Show More As a normative matter, a formalist insists that law is settled when it has achieved the demonstrably “right” result based on the law’s internal logic.24 24.Thomas C. Grey, Langdell’s Orthodoxy, 45 U. Pitt. L. Rev. 1, 8 (1983).Show More But from a descriptive perspective, a formalist might accept that law is settled—even if it has not reached the objectively correct result—when the concerns of stare decisis, such as reliance, predictability, and basic fairness, are paramount.25 25.See Randy J. Kozel, Settled Versus Right: Constitutional Method and the Path of Precedent, 91 Tex. L. Rev. 1843, 1874 (2013) (citing Lawrence B. Solum, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, 9 U. Pa. J. Const. L. 155, 186, 192–95 (2006)) (describing a “neoformalist” model of stare decisis in which even judicial “mistakes” can and should create binding precedents, if they are decided through a formalistic process of reasoning); Amy Coney Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017) (describing Justice Scalia’s approach to the tension between the value of stare decisis and a formalistic, originalist reading of the Constitution).Show More

The next two concepts of settled law draw on the legal realist school.26 26.SeeFrederick Schauer, Legal Realism Untamed, 91 Tex. L. Rev. 749, 749 (2013) (“Legal Realism is conventionally understood, in part, to question legal doctrine’s determinacy and positive law’s causal effect on judicial decisions.”).Show More Descriptively, a realist regards law as settled when it faces no material threat of reversal.27 27.As we build out below, it essentially constitutes an exercise in Holmesian Prediction Theory. SeeO.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 460–61 (1897).Show More Normatively, a realist will insist that law is settled only when it has achieved the “right” result, but she understands that idea very differently than a formalist does. The correct result for a legal realist corresponds to some external frame of reference, such as utility, efficiency, or social justice.28 28.For the foundational realist works encouraging an interdisciplinary approach to law, see Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935); Jerome Frank, Law & the Modern Mind (Transaction Publishers 2009) (1930); Karl N. Llewellyn, Law and the Social Sciences—Especially Sociology, 62 Harv. L. Rev. 1286 (1949); Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence (pts. 1 & 3), 24 Harv. L. Rev. 591 (1911), 25 Harv. L. Rev. 489 (1912).Show More

The fifth and final concept of settled law draws on legal process theory, which focuses on a legal decision’s methodological process rather than its substantive outcome.29 29.The seminal tome of the legal process school is Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). For an overview of the related concept of procedural justice, see Lawrence B. Solum, Procedural Justice, 78 S. Cal. L. Rev. 181 (2004).Show More For the legal process theorist, law is settled if and when a duly constituted court reaches a decision through an appropriate methodology, and within this framework the descriptive and normative perspectives essentially become inseparable.

A simple illustration might help reify these five theoretical concepts. Consider the question: “Is Marbury v. Madison settled law?” Nearly everyone would say “yes,” but Table 1 identifies more precisely the five different ideas that someone could intend to communicate when asserting that Marbury is settled.

Table 1: The Taxonomy of Settled Law


Marbury v. Madison is settled law.

Normative Formalism

Marbury arrived at the objectively correct understanding of constitutional law.

Descriptive Formalism

Principles of stare decisis require continued adherence to Marbury.

Descriptive Realism

There is no material chance that the Supreme Court will overrule Marbury in the near future.

Normative Realism

Marbury achieved a desirable outcome in light of its intra- and extra-legal consequences.

Legal Process

Marbury merits continued adherence because it was issued by a duly constituted court employing an appropriate methodology.

In Part III, we show why developing a clearer understanding of settled law is far more than an academic exercise. At the intensely practical level, settled law suffuses a diverse array of doctrines, and failing to appreciate how it functions has led to pervasive confusion and mistakes. Our principal example comes from the qualified immunity context. Although courts often cast the relevant inquiry in terms of controlling law—whether binding precedent has clearly established that a particular right exists—this approach has invited a host of anomalies and errors. Instead, we argue that viewing qualified immunity through the lens of settled law makes much more sense doctrinally and normatively. Moreover, understanding qualified immunity as turning on settled law—specifically, two of the taxonomy’s five concepts—alleviates nearly all of the current conceptual problems and has the potential to refocus courts on the heart of the inquiry.

Finally, we argue that a more nuanced understanding of settled law can enhance legal dialogue, particularly the conversation about judicial nominations. Too often legal actors talk past one another because they use “settled law” to convey different ideas, and that in turn can lead to unfounded allegations of bad faith. On this level, the taxonomy is not a panacea; far from it. But greater conceptual clarity about settled law can train attention on the debates that truly matter rather than a bewitching semantic game.

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