When the Supreme Court ruled on Thursday that an Alabama redistricting map violated the Voting Rights Act — thus declining to strike down some remaining parts of the VRA — headlines branded the decision a “surprise” and “unexpected.” In particular, some commentators expressed astonishment at the emphasis the majority placed on respect for judicial precedent, or stare decisis. Why would a majority of the justices, some of whom previously gutted other parts of the VRA, and who have overturned decades precedent on issues from abortion to guns to religion, hold back here?

The answer is straightforward, at least according to Justice Brett Kavanaugh — who provided the decisive fifth vote to uphold precedent in the voting case, but who voted to overturn nearly 50 years of precedent on abortion last year. Since Kavanaugh is now this court’s closest thing to a swing justice, it behooves us to listen carefully to what he has to say on the subject.

As he explained in his concurrence in the voting case, Allen v. Milligan, Kavanaugh believes that stare decisis has special weight when the court is interpreting statutes passed by Congress, as opposed to interpreting the Constitution. The Allen case was about interpreting the Voting Rights Act. The abortion case, Dobbs v. Jackson Women’s Health, was about the meaning of the Constitution — as will also be true of other major constitutional decisions coming this term, including the affirmative action case.

On the face of it, respecting precedent more when it applies to statutes than to the Constitution is counterintuitive. After all, the Constitution is older and more important than any statute. It sets the ground rules for which statutes are allowed and which are not. Members of the public are more familiar with the Constitution than specific statutes, and more people care about its meaning. If stare decisis is about respecting the historical weight of tradition, it would seem the Constitution should have a clear advantage over statutes passed by Congress.

Yet there is a long-standing doctrine that argues stare decisis is more important when applied to statutes. To understand why, you need to think like a lawyer. (Sorry.)

The basic idea is that it’s a lot easier for Congress to change a statute than it is for the public to amend the Constitution. If Congress doesn’t like a judge’s ruling on a statute, Congress can change the law. When Congress goes along with a judicial interpretation, it implicitly endorses that interpretation — which gives future judges even more reason to respect it. This approach rests on a degree of deference to Congress.

By contrast, if the public doesn’t agree with an earlier court’s interpretation of the Constitution, there’s little they can do about it. The only remedy might be a later court overturning the earlier, “wrong” decision.

Not everyone buys this logic. Justice Clarence Thomas dissented in the voting rights case. In a footnote, he called Kavanaugh’s reliance on statutory stare decisis “puzzling.” He said he could perceive “no conceptual basis” for it. According to Thomas, the judge’s job is to apply the law to the facts of the case, “regardless of how easy it is to change the law.”

Thomas overstates the case. His approach would leave us with no room at all for judges to respect precedent. And in fact, Thomas generally and genuinely doesn’t think precedent should ever matter, whether in statutory or constitutional cases.

The true value of precedent is that it gives judicial decisions the capacity to function as rules of law that can guide our actions. If judges can change their minds anytime, then their decisions aren’t truly part of the rule of law. They are simply case-by-case ad hoc decisions, not rules we can rely on. Thomas ignores that basic feature of the doctrine.

Retired Justice Anthony Kennedy, for whom Kavanaugh once clerked, was an exponent of a gradualist theory of stare decisis. He was one of the key voices in the 1992 Casey v. Planned Parenthood case, in which he was the likely author of a famous line, “liberty finds no refuge in a jurisprudence of doubt.” In other words, unless you can rely on a precedent that says you are free, you aren’t really free.

Even when Kennedy wanted to expand constitutional rights, as he did for gay people, he did it slowly, step by step, so as to evolve precedent gradually. He took 20 years to move from striking down laws targeting gay people to guaranteeing marriage equality.

Whatever the merits of Kavanaugh’s view about statutory stare decisis, what it has going for it is the fact that it’s… yes… based on precedent. Courts have repeated it for many years, albeit not, as Thomas suggests, all the way back to the founding. There is therefore a kind of meta-argument in favor of it: When Congress doesn’t overrule a statutory interpretation by passing a new law, lawmakers can expect that precedent will apply.

The merits of giving special respect to statutory stare decisis are interesting to debate, at least to law professors like me. But in practice, what matters is that Kavanaugh was laying out an explanation for when he chooses to follow precedent and when he chooses to overturn it.

Back in April of 2020, in the run-up to the Dobbs case, Kavanaugh wrote a 19-page concurrence in a minor criminal law case laying out his factors for respecting or overturning precedent. He didn’t pin himself down, but he did seem to be thinking through how to vote on abortion.

Now Kavanaugh seems to be filling in his thinking. He’s left himself room to overturn affirmative action, not to mention constitutional precedents in other hot-button areas like the separation of church and state.

Kavanaugh’s respect for precedent in the voting rights case does not necessarily signal any softening in his willingness to participate in the conservative constitutional revolution happening at the Supreme Court. But his respect for statutory precedent does separate him from the court’s more radical members. Perhaps it will help him to unleash his inner Kennedy and lead him away from the revolutionary path his colleagues are forging.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”

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