Does Ginsburg’s Judicial Voice Get the International Level?

2.1 Justice Ginsburg’s Decision-Making Approach: Stare Decisis Atque Quieta Non Movere

When Justice Ginsburg was questioned in her Senate confirmation hearing to the Supreme Court on how she would vote on a specific controversial issue (death penalty), she replied that she would be “scrupulous in applying the law on the basis of the Constitution, legislation, and precedent”.^[4] More specifically, regarding her stance to stare decisis, she emphasized that:

“the soundness of the reasoning is certainly a consideration. But we shouldn’t abandon a precedent just because we think a different solution more rational. Justice Brandeis said some things are better settled than settled right, especially when the legislature sits. So if a precedent settles the construction of a statute, stare decisis means more than attachment to the soundness of the reasoning. Reliance interests are important; the stability, certainty, predictability of the law is important. If people know what the law is, they can make their decisions, set their course in accordance with that law. So the importance of letting the matter stay decided means judges should not discard precedent simply because they later conclude it would have been better to have decided the case the other way. That is not enough”.^[5]

Thus, she toughly believed that maintaining stability, certainty, and predictability in the legal system are values attainable through close adherence to precedents. Nevertheless, if a better decision is not enough to discard precedents, what does it take – on Justice Ginsburg’s judicial voice – to change the law? “The question [is] not whether, but when, innovation is in order” – she said.^[6]

A discussion regarding the approaches to stare decisis may aid in understanding Ginsburg’s reasoning to follow or to overrule a precedent.^[7] Scholars settled down that stare decisis comprises both a strict and a liberal approach to precedents.^[8] According to the strict rule of precedents, a court must follow its precedents and all higher court precedents. To this line, the only valid justification for overruling a precedent is that the case’s situation to be settled is not subsumable under any of the classes delineated by the antecedent precedents. Instead, according to the liberal rule, a precedent need not always be followed, and flexibility and growth are highly allowed. Therefore, if a court considers that a previous case is wrongly decided, it must be overruled.^[9] Justice Ginsburg supported such distinctions by referring the “precisionists” (viz., who stressed stability, uniformity, and predictability) against the “percolationists” (viz., who supported the value of flexibility, experimentation, and adaptation in the judicial system).^[10]

To this effect, some judges, as an example, Justices Blackmun, O’Connor, Stevens, Kennedy, White and Souter gave, through their opinions, more weight to stare decisis principle, treating the precedent as a “rebuttable presumption” that should be adhered to, unless it can be overcome by “special justifications”.^[11] However, what are such “special justifications” vary from Justice to Justice. Otherwise, other judges, like Chief Justice Rehnquist and Justice Scalia, also approached as creating a rebuttable presumption; but, such presumptions may be reversed if considered erroneous, without any special justifications.^[12]

In remembering Justice White as a strong supporter of stare decisis principle, his successor Justice Ginsburg showed his view by way of an example that may aid in understanding the results of following a particular approach. In a case decided in 1980, Rummel v. Estelle,^[13] the Court settled a life sentence for a nonviolent recidivist who used a credit card to obtain $80 worth of goods fraudulently. Justice White joined the majority. Three years later, the Court, in Solem v. Helm,^[14] reversed the previous precedent, annulling a life-without-parole sentence for a nonviolent recidivist whose crime of conviction was the utterance of a no-account check for $100. Justice White dissented, criticizing the majority for carelessly throwing away by the stare decisis principle. Subsequently, in 1991, in Harmelin v. Michigan,^[15] Justice White supported Solem’s adherence, writing a dissent that criticized a defendant’s life-without-parole sentence for a first-time drug offense that violated the Eighth Amendment.^[16]

Behind each of these approaches, there is a desire to achieve particular values. A framework of those values should help in better understanding the tension towards following or overruling the precedents. Justices (or judges) inclined to the stability of precedents aimed at gaining predictability, replicability, vertical coherence (doctrinal stability of rules or doctrines of law across time), and horizontal coherence (systematic consistency among the related legal rules and principles).^[17]

Moreover, a justification of stare decisis is frequently found in society’s reliance. In this sense, when there is a lack of criticism over a precedent, it is considered socially acceptable. A socially accepted decision generates stability and certainty of the law and, therefore, predictability. For this reason, the socially accepted decision must be protected by overruling.^[18] Another relevant role of adherence to stare decisis principle is the impact over the principle of equality. A legal system that applies different rules to similar cases is deemed arbitrary and unjust.^[19] Institutional legitimacy is also affected by stare decisis principles. The social perception of coherence over the enforcement of the law brings confidence towards the court and, therefore, towards its legitimization by the public.^[20] Besides, following precedents also promotes administrative efficiency.^[21] Overruling a precedent means re-examination of the issue submitted to it. Thus, the adherence to a specific precedent limits the court’s agenda, allowing the judges to follow its reasoning (or for higher courts) and focusing its attention on anew or debatable issues.

Notwithstanding such values, others are arguments that envisage the weakness of unconditional adherence to stare decisis. Mainly, overruling may remove inconsistent or unreasonable constitutional or statutory interpretation – also legitimating constitutional path; helps recognition of social and political factors that make the prior decision either outdated or ineffective; promotes order in society, by decreasing conflicts in its relations.^[22]

Considering these opposite values, how has Justice Ginsburg faced her balancing task when questions of stare decisis arise? Justice Ginsburg’s position on the point cannot be easily predicted because although she had a very conservative stare decisis, she was a social change pioneer, especially concerning gender issues. However, these two aspects in her legacy are not as opposed as they might seem at first glance. Her rigorous approach to overrule represents, in principle, the source of her remarkable and stable social change. As said, Justice Ginsburg’s writings^[23] and opinions^[24] disclosed her conservative and respectful stance for stare decisis principle. She firmly believed that adherence to precedent depends on well-reasoned precedent and substantial societal reliance on such precedent. Thus, protecting such precedents by overruling leads to systematic consistency, doctrinal stability, and the promotion of collegiality.^[25] She was very skeptical in abandoning a precedent only because it sounded “unworkable” and strictly believed that, before overruling a precedent, the court should probe society’s substantive reliance toward such precedent.^[26] In this sense, she stressed the figure of the precedent as a mirror of social behaves. Moreover, since the precedent reflects the purposes and the beliefs of the community, Court’s decisions must follow the legislative power trail. The courts should, hence, initiate a dialogue with the legislature before governing situations independently under legislative control:^[27] “measured motions seem to me right, in the main, for constitutional as well as common law adjudication”.^[28] She muscularly explained this thought in respect of Roe v. Wade.^[29] She contrasted the stunning 1973 Roe decision with more restrained dispositions, contemporaneous with Roe, regarding abortion.^[30] In Roe v. Wade, the Supreme Court declared a Texas criminal abortion statute that restricted woman’s autonomy intolerably as “violative of the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy”.^[31] Moreover, in the same case, the Court broadly extended his reasoning, fashioning a set of rules that displaced virtually every statute then in force. The Court declared that a woman, guided by a medical judgment over woman health’s, had a “fundamental”^[32] right to abort, a right related to personal autonomy derived from the due process guarantee. It then precisely defined how the state regulation of abortion should be shaped and, more specifically, set out the circumstance in which a state has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life.^[33] According to Ginsburg, the Court, fashioning such a set of rules, went too beyond; it should have limited itself to declare the Texas statute as unconstitutional. In 1973, when the decision was issued, the abortion law was in a state of change across the U.S., and Roe’s decision affected every state’s criminal abortion statutes, even those with provisions resulting least restrictive.^[34] Following Roe, since the Court left the abortion last words to a medical judgment, a period of new hospital regulations and rules that limited abortion, justified by woman’s health reasons, started. Roe had ironically stimulated, rather than discouraged, antiabortion measures. In this sense, the Court went too far and, on Ginsburg’s view, it should have rather referred specifically to sex equality considerations in its decisions. Since the debate on gender equality was mature in 1973,^[35] Court might have “placed the woman alone, rather than the woman tied to her physician, at the center of its attention”.^[36] This example showed Ginsburg’s respectful approach to stare decisis, according to which the Court should bring the direction of change “through a temperate brand of decision-making, one that was not extravagant or divisive”.^[37] Along the same trend over gender equality in the 1970s, the Court – with a measured motion – should have grounded his rulings over the autonomy of choice of the woman, applying a broader principle that was getting embedded into the law and thus, limiting itself to declare Texas statute on abortion as unconstitutional.

Moreover, Justice Ginsburg also revealed the role of stare decisis on judicial restraint. During her confirmation hearing, she stressed how strict adherence to stare decisis “is also important because it keeps judges from infusing their own value judgments into the law”.^[38] To this effect, stare decisis is a judge’s deterrent of pervading decisions of their individualism.

If the precedent is the mirror of social behaves, overruling – according to Justice Ginsburg – becomes necessary when anew social behaves have to be embedded into legal systems. Therefore, the judiciary must reflect social changes to protect legal-system values, such as fairness and justice. For these reasons, Ginsburg considered as “special justifications” to overrule or to hold a precedent as inapplicable (i) the need to accommodate social changes and legal progressions; (ii) the desire for the law to respond to needs; (iii) the facts of the precedent were dissimilar to the case to be settle; and (iv) the achievement of fairness and justice.^[39]

In this sense, in most of 1970s gender-classification cases, unlike Roe, the Court conducted the direction of change through a “temperate brand of decision-making, one that was not extravagant or divisive”.^[40] Justice Ginsburg’s experiences in gender discrimination exactly show her approach to overrule precedents.^[41] The achievement of women’s rights through litigation process was the strategy of the women’s movement in the late 1960s and one of the litigators was Ruth Bader Ginsburg.^[42] Mainly, under her effort, the Supreme Court has, on the one hand, reshaped the constitutional framework towards sex discrimination issues. On the other hand, it adopted an intermediate level of scrutiny for sex discrimination cases under the equal protection clause.^[43] First and foremost, Ginsburg’s effort, as an advocate, over gender issues reflected a social demand for change. Before the Supreme Court’s first significant ruling on gender equality, the national consciousness was more sensitive to the woman’s status. This led to implementing specific reforms towards gender equality, especially in labor law.^[44] Moreover, by 1970 the number of women in legal institutions, especially in law school, was increasing,^[45] and many organizations in defense of woman’s rights were formed.^[46] In that period, as an advocate and as director of WRP (Women’s Rights Project, established by ACLU), Ginsburg was the principal author of successful briefs.^[47] The strategy that she adopted in litigation for women aids in understating her approach to how a precedent should be overruled. Since the social path was mature to accept the change in sex discrimination, she worked for building a body of precedents that ruled that individuals must have equal treatment, regardless of their sex. She brought before the Courts easy cases, where there should be “clear winners”,^[48] using the equal protection clause (developed for race discrimination cases), and brought the Court to establish a rule for sex equality that would have served as a line for solving more complex cases.^[49]

Moreover, this strategy included advocacy for cases where gender discrimination was suffered by men.^[50] In Reed, she presented the case suddenly for the strict scrutiny test, i.e., the level of scrutiny used for race discrimination. The Court uses the strict scrutiny test to ban a law classification that affects fundamental rights or is inherently suspect, i.e., when it provides a difference between individuals based on genetic and unalterable biological traits of birth over which a person has no control without any convincing justification. Then, Ginsburg brought the “rational relation test” (a lower level of scrutiny). Under this scrutiny, a law classification survives to Court’s review only when justified by a rational legislative pursuit. Even if the Court in Reed didn’t adopt the strict scrutiny test, using the equal clause (and the strict scrutiny argument), Ginsburg convinced the Court that the classification was arbitrary under a “rational relation” scrutiny.^[51] Reed’s outcomes pushed the court for using the equal protection clause and, over time, a heightened level of scrutiny to review for sex-based discrimination. Indeed, over time, she continued to ask the Court to rule gender discrimination cases applying “a heightened level of scrutiny”,^[52] even if she knew that the Court would apply the rational test scrutiny: the strategy was to force the Court continuously to face and confront with a heightened level of scrutiny argument.^[53] The strategy was successful since in 1976 in Craig case the Court adopted higher scrutiny for review sex-based classification (an intermediate one), under which to resist to review, “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives”^[54] (not only a rational objective).

Her strategy towards gender class, as an advocate, reproduces her rational movement towards overruling. She demonstrated how overruling has to reflect a social claim for changing. Moreover, presenting easy cases, she brought significant social changes by building a set of “precedents one upon the other”,^[55] without pleading for storming and unproductive decisions.

Facing stare decisis, Justice Ginsburg remained loyal to her judicial philosophy “by being idealistic in the ends, but pragmatic in the means”.^[56]

2.2 The Role of Institutional Legitimacy

Process values, which are “the goals and positive contributions of good procedure”,^[57] have both an instrumental or a noninstrumental nature. The instrumental values are related to the quality of the process’s outcome (the decision) that emerges from the process itself.^[58] These groups of values included mainly the accuracy of the decision, like correctness in both the positive (fact-finding) and the normative (developing or applying norms) properties of the decision-making process; the decisional efficacy; the fairness of the judgment; and the efficiency in reaching a decision.^[59] From a purely instrumental perspective, the procedure is merely a means to gain an end. The noninstrumental values are inborn in the procedure itself, disregarding the effect of the procedure over the substantive quality of the decision.^[60] These values conferred a broad significance to the procedure that goes beyond the purpose of producing better decisions. Thus, a procedural requirement can elevate individual dignity or get heuristic or educational purposes.^[61]

Moreover, among its noninstrumental values, the procedure should enhance the perception of the legitimacy of the institution that takes the decision.^[62] In other words, procedural rules contribute to enforcing the institutional legitimacy of the judiciary power. The courts’ ability to operate depends, indeed, upon public acceptance of their institutional legitimacy; without it, the courts will be ignored or obliterated.^[63] In the case of government institutions, institutional legitimacy is conferred by consent. Instead, since the judges’ appointment procedure, the judicial legitimacy demands “substitutes” of consent.^[64]

As a “judge’s judge”,^[65] Justice Ginsburg highly sustained the role of the judiciary’s legitimacy, clearly defined her considerations regarding substitutes of consent. Her thoughts denoted four qualities that describe good judges and judging,^[66] i.e., deference to precedent,^[67] judicial restraint, collegiality, judicial interdependence, and procedural accountability.^[68]

Justice Ginsburg showed her commitment to judicial restraint. In her Senate confirmation hearing, she noticeably emphasized the role of courts in a democratic society, characterizing the federal judiciary as “third in line” in the constitutional system and “placed apart from the political fray”.^[69] In her view, judges, through their opinions, should try to persuade, rather than to pontificate.

Moreover, she believed in striving for collegiality on multiple-judge courts.^[70] In comparing the styles of opinions writing in United States courts with those in the civil law countries (named the collective or institutional judging pattern),^[71] she considered that overindulgence in separate opinion writing might weaken both the reputation of the judiciary for judgment and the respect accorded to court’s precedents. When the Court fails to act as a collegial body, in her view, it slighted consistency, predictability, clarity, and stability of its precedents.^[72]

Another substitute of consent in Ginsburg’s judicial philosophy concerns the judiciary’s coordination with other political branches. Speaking in a “moderate and restrained” voice, the judiciary should engage in “a dialogue with, not a diatribe against”, departments of government, state authorities, and even its colleagues.^[73] She figured out this harmonization between the benches as “measured motions”,^[74] which are necessary both for constitutional and common law adjudication. She cited as the most prominent example of the lack of this coordination Roe v. Wave that highlighted how more moderate reasoning, i.e., a measured motion with governmental power, might have reduced rather than fostered the controversies over abortion.^[75]

Moreover, she stressed the importance of deciding cases on procedural rather than constitutional grounds whenever possible. In cases of debated issues, she proposed to ask, “is this conflict really necessary?”.^[76] In other terms, even around the most debated constitutional issues, it may be a procedural ground on which everyone can agree, saving the larger question for another day. During her tenure as Justice, she complained about the proceduralism approach. Indeed, she had a massive impact on civil procedure and federal jurisdiction.^[77] Since she authored many of its most significant procedure opinions,^[78] she has been regarded as the “resident proceduralist”^[79] of the Court for many years: e.g., Amchem Products, Inc. v. Windsor,^[80] (the leading decision regarding the boundaries of adequate representation in class action litigation); Gasperini v. Center for Humanities, Inc.^[81] (the Court’s last major statement on the Erie doctrine); Steel Co. v. Citizens for a Better Environment^[82] and Ruhrgas AG v. Marathon Oil Co.^[83] (leading decisions that are allowing resequencing of personal jurisdiction before subject–matter jurisdiction); Taylor v. Sturgell^[84] (a leading case regarding the conditions for binding nonparties to the preclusive effects of a judgment); New Hampshire v. Maine,^[85] (regarding the doctrine of judicial estoppel); Exxon Mobil Corp. v. Saudi Basic Industries Corp.,^[86] (regarding the original jurisdiction of the federal district courts). Justice Ginsburg’s jurisprudence on procedural grounds revealed two functions.^[87] The well-defined enforcement of procedural rules enhances the perception of fair adjudications. Procedural fairness is an entangled part of the judicial system’s overall fairness since it avoids uncertainties about the fairness of the substantive result. The second function, a direct consequence of the first, is to maintain the judiciary’s legitimacy. Procedural rules have an enormous impact on the general sense of the integrity of the courts. They conferred the faith that the courts exercise their authority following a pre-featured framework of rules and, hence, instill a judicial system’s sense of stability.

3.1 A Presentation

The role of the judiciary is – since at least two centuries – in an institutional debate. The strain is inborn in the type of empowerment of the judiciary that does not act based on the consensus. Citizens also criticize the courts for the distorted use of their power, influenced by the political struggles. Besides, many civil law systems of justice, remarkably the Italian civil justice system, are commonly perceived as inefficient,^[88] and the proper function of a court is strictly related to its efficiency. To this effect, new institutions have been created to reduce the Court’s docket. One of these pertains to the Italian Supreme Court’s access, i.e., the Supreme Court’s “filter”, introduced in 2009 by Article 360 bis of the Italian Civil Procedure Code (hereinafter, I-CCP). It enriches the Italian Supreme Court with discretionary power, even if not unfettered (it is indeed anchored to specific considerations). The role of institutional legitimacy is still more substantial concerning forms of discretionary jurisdiction. To this effect, the institutional framework regarding the substitutes of consensus to enhance the judiciary’s institutional legitimacy outlined by Justice Ginsburg may help in understanding the miscarriage of some institutions, like the Italian Supreme Court’s filter.

Moreover, unlike the common law system, civil law jurisdictions do not adopt stare decisis principle in adjudication. Nonetheless, precedents have a pervasive role. In this regard, a considerable dilemma comes over civil law jurists: should the courts only apply the law in books, or could they also, through the interpretation of the law in books, “create” rules of law?^[89]

According to a scholarly doctrine, the judges must not create anything: they inquiry, interpret, and enforce settled and pre-established regulae iuris (i.e., rules of law). The creation of law is a function reserved to the legislative branch; otherwise, the division of powers is at risk.^[90] On the opposite side, another scholarly doctrine considered the role of creation of the law as embedded in the interpretation; thus, conferring to the judges – even more than to the legislator – the duty to adapt the law to changes in reality.^[91]

The creative impact of the jurisprudence generally intervene in some types of events: in case of gaps in the law; when a rule is sensitive to a plurality of interpretations and the court uses the interpretation that is more adequate to social behaves; when a traditional and unambiguous interpretation of a rule becomes obsolete and, thus, the court adopts an updated interpretation; when a rule, through general clauses (such as good faith, fairness, reasonableness, solidarity), gives discretionary powers of interpretation to judges.^[92]

Ginsburg’s approach of decision-making defines the kind of judicial rules directed to judges. When highly debated or significant issue is at stake, her values framework should represent a guideline to judges of civil law concerning “how to move” and, particularly, how the court should create law only through measured motion, “by being idealistic in the ends, but pragmatic in the means”.^[93] To this effect, we will try to scan through Justice Ginburg’s figurative lens of two Italian Supreme Court’s recent landmark decisions concerning the res judicata pattern, aiming at revealing what the Court should improve in its approach to decision-making, mainly when the decisions express a creative method.

3.2 The Italian Supreme Court’s Access: Is the Court’s Institutional Legitimacy Sufficient for Forms of Certiorari?

As of 1988, U.S. Supreme Court is a fully independent decisionmaker that has an influential authority over case selection. Before 1988, the Supreme Court enjoyed discretion to determine whether to review most of the cases coming before it (discretionary jurisdiction), but several significant statutes gave litigants a right of appeal to the Supreme Court (mandatory jurisdiction). In 1988, Congress eliminated virtually all of these mandatory appeal provisions, substituting instead discretionary review on certiorari.^[94] The mandatory jurisdiction was considered a factor that notably increased Court’s docket; hence, such amendment’s leading reason pertained to the necessity of decreasing the Court’s caseload.^[95] Nowadays, the discretionary jurisdiction in every instance reflects U.S. Supreme Court’s unchallenged prerogative to choose whether to resolve or to bypass significant controversies that are brought before it. In other words, following 1988, it has gained “virtually complete control over its own agenda”.^[96]

Over the years, justices had actively pushed for gaining more direct control of their docket.^[97] The Justices’ bent for the discretionary jurisdiction goes beyond the willingness to keep up with its workload. Instead, the Justices’ concerns for enhancing of the mandatory jurisdiction related to their ability to fulfill their role: this ability does not involve only deciding the cases submitted to the Court but also deciding which cases should be submitted before it at any given point in time. As Justice Brennan clearly emphasized, “the screening function is inextricably linked to the fulfillment of the Court’s essential duties and is vital to the effective performance of the Court’s unique mission ‘to define the rights guaranteed by the Constitution, to assure the uniformity of federal law, and to maintain the constitutional distribution of powers in our federal system’”.^[98] Justice Brennan’s words show how the discretionary jurisdiction is strictly related on the one hand, to the Supreme Court’s capacity (and duty) to decide cases in a timely and effective manner and on the other, to the necessity to address the Court only for specific issues and to its duty to maintain uniformity of federal law (i.e., to the principle of stare decisis). Along the same path, the Court’s calendar reflects society’s concerns with the government, and it is the indispensable source by which the Court considers these concerns. Indeed, the Constitution represents a living document, and the Court becomes aware of the necessity for reconsideration of its interpretation only because filed cases reveal the need for new and previously unanticipated applications of constitutional principles. However, the interpretation’s evolution is not merely a matter of hearing arguments and writing opinions in cases granted plenary review. It is instead a matter of selection, and therefore, the screening function is considered an inseparable and fundamental part of the whole responsibility of the Justices.^[99]

How the process for certiorari works? Processing certiorari petitions could be considered an essential part of Justices’ job. As Justice Steven suggested, his colleagues’ collective effort on certiorari petitions must be the same as the one deployed on argued cases.^[100] However, certiorari’s process is remarkably different from the traditional judicial process that guides the court’s plenary decision-making.^[101] Indeed, the first lacks traditional judicial decision-making features: collegial deliberation, constraining criteria, majority rule, and public accountability. In other words, the discretionary of the Justices in deciding cased to be addressed is virtually unfettered.^[102]

Each week, the Justice and their law clerks’ chambers are full of new cases to be selected. In this sense, the process of selection is taken by Justices on their own. Following an initial review, the court denies reviewing unless a Justice requests other Justices to put a case on the discuss list.^[103] The cases placed on the discussion list have a collective consideration and a vote in the conference.

Even if this process of selection is made without any forms of constraints, Rule 10 of the Supreme Court Rule sets out nonetheless, “considerations governing review on certiorari”.^[104] The rule (that begins specifying that “review on a writ of certiorari is not a matter of right, but of judicial discretion” and that “writ of certiorari will be granted only for compelling reasons”), sets out that the reasons that the Court considers for granting or denying certiorari are whether a lower court of last resort (i.e., a federal court of appeals or a state court of last resort) (i) has entered a decision or has decided an important federal question in conflict with the decision of another such court; or (ii) has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of the Supreme Court’s supervisory power; (iii) has decided a substantial question of federal law that has not been, but should be, settled by the Supreme Court, (iv) alternatively, has decided a substantial federal question that conflicts with the Supreme Court’s relevant decisions.

Out of Rule 10, researchers have also identified other and more ideological influences on Court’s decision-making for granting certiorari.^[105] Thus, it would be more likely that a Justice grants certiorari where they were uncomfortable with the ideological result below and is inclined to reversing on the merits.^[106]

Besides, the jurisprudential approach for decision-making of each Justice has an impact on granting or denying certiorari. More specifically, there is a discussion on legal literature regarding the different approaches that Justices use to resolve cases on merit^[107] and, thus, these approaches also impact also on decision-making over certiorari petitions.^[108] These approaches are, mainly, the following: a “rule-articulating” approach, a “standard-setting” approach, and an “incrementalist” approach. Under the “rule-articulating” approach, the Court tends to decide cases by defining broad and clear rules that may govern other situations where the facts are somewhat different, but the same principles should be applied. Under the “standard – setting” approach, the Court decides cases by applying background principles or policies but considering all factors of the case at stake. This approach applies the “balancing test”, leaving the lower court to apply a defined formula that gives them the discretion to weight those factors in future cases. At the opposite side of the “rule-articulating” approach – there is the “incrementalist” approach, where the Court does not decide based on the pronouncement of general principles, but case-by-case. In other words, Justices who follow the latter approach believe that they are not authors of law but interpreters of the law that by resolving disputes create a pattern of judgments (to be followed by lower courts) in a particular area. Along the same line, who follow the “rule articulating” approach is disinclined, on average, to vote to grant certiorari: rules to be applied broadly give fewer chances to a specific case to be reviewed. On the contrary, supporters of the “incrementalist” approach are inclined, on average, to vote to grant certiorari in a different (also in quite similar cases). Indeed, the incrementalist approach requires that Court take a sufficient number of cases in each distinct area to create a guide case-law pattern in such area.^[109]

Moreover, other Justices’ ideological influence impacting granting or denying certiorari may depend on their views on the importance of ensuring uniformity by resolving conflicts^[110] or their particular interest in specific legal issues and effectuating social change.^[111]

At this point, it seems clear that the Supreme Court’s control over case selection is an essential tool in managing the size of the docket. Nonetheless, this power gives the Court more than this mere administrative competence: it confers the ability to choose which issues the Court will decide, in what context, and at what time, in order – especially – to assure the uniformity of federal law.

Let us now shift the Supreme Court’s case selection in the Italian justice system.

Every scholarly investigation or reform regarding the possibility of allowing the Italian Supreme Court’s authority over case selection has to face Article 111.7 of the Italian Constitution that provides “appeals to the Court of Cassation in cases of violations of the law shall always be allowed”.^[112] According to a rigorous interpretation, this rule does not allow forms of fully discretional jurisdiction, and it seems to be oriented rather towards a model of mandatory jurisdiction.^[113] Actually, it does not preclude any method of case selection, especially in the form of a preliminary review of “evident unfoundedness of the petition”^[114] aimed at reinforcing the “nomophylactic function” of the Court (i.e., the Court’s role of shaping the legal systems and ensuring the uniform application of norms).^[115] This is confirmed by the preparatory work of the Italian Constitution of the Second Commission. Indeed, Calamandrei’s proposal of such rule (the guarantee of Supreme Court review) was aimed at maintaining the harmony of law in books through the consistency of law in action. In other words, in a system not founded on the doctrine of precedent, Article 111.7 had the purpose of granting an authority (e.g., a supreme court) that should govern the law’s uniform interpretation. To this effect, according to an interpretation in line with the role of the Court of granting the uniform application of the law, a selection of cases limited to the lack of well-founded reasons that justify “the violation of law” may be allowed.^[116] In other terms, if the “Nomo-phylactic function” is not required, the review of the Court may be excluded. Therefore, Art. 111.7 protect the enforcement of constitutional principles (ius costitutiones), rather than the unconditional and limitless right to have a Supreme Court’s full scrutiny over each case (ius litigatoris).

In Italy, the debate concerning introducing a method of case selection arose for the Supreme Court’s high workload. Authors claimed that the Supreme Court’s excessive workload had a noticeable negative impact on the judgments’ quality and, hence, on the “Nomo-phylactic role” of the Court in the justice system.^[117] These reflections brought to the introduction of a selection tool for the court’s petitions, i.e., a barrier for the Supreme Court’s review. In 2009, it was indeed introduced the Supreme Court’s “filter” formulated by the Article 360 bis I-CCP.^[118]

Article 360 bis I-CCP sets out that “The motion is inadmissible in the following cases: (1) when the challenged decision has decided the issue of law consistently with the decisions of the Court, and the exam of the grounds does not offer elements to confirm or amend the same opinion; (2) when the challenge concerning the breach of principles governing the due process is manifestly groundless”.^[119]

Along this line, it was also created a new bench of the Italian Supreme Court, eloquently referred to as “filter bench”: this bench is entrusted with a preliminary scanning of cases. According to the considerations set out by Article 360 bis I-CCP, it issues a formal decision to dismiss the case if it evaluates a petition as manifestly ungrounded. Otherwise, it sends back the petition to the President of the Court, thus assigning the case to the empowered bench.

It may be noticing parallelism between Article 10 of the Rules of the (U.S.) Supreme Court and Article 360 bis I-CCP. More specifically, the considerations stated Article 360 bis I-CCP are turned upside down in respect of Article 10 of the Rules of the (U.S.) Supreme Court: the first rules when a petition is inadmissible; instead of the second states when a petition is admissible. Aside from each formulation, the rules’ subjects appear to define a similar method: they both associate the selection of cases with the leading role of a supreme court, i.e., to grant the uniformity of law. In other words, even if both rules have been created for purposes of efficiency (i.e., to manage the supreme court’s workload), they both are formulated for gaining results of efficacy (and of effectiveness too), i.e., to grant the uniformity of the law. Nonetheless, commentators and the Italian Supreme Court itself have shown several doubts about implementing the Article 360 bis I-CCP. Among others,^[120] the most remarkable doubts pertain to (1) the nature of the sanction, i.e., if it concerns the inadmissibility (a defect related to procedural matters) or groundlessness of the motives (a defect related to the subject of the case); (2) the meaning of “decisions of the Court” as a term of reference for evaluating the petition (and therefore the challenged decision).

As regards the first doubt, the uncertainty over inadmissibility/groundlessness has not merely legal consequences. Then, it affects mainly the term of reference to evaluate the inadmissibility/groundlessness of the petition. More specifically, the initial jurisprudence stand, with a Supreme Court (Full Board)’s decision issued in 2010,^[121] pushed out toward a selection made based on of groundlessness, going beyond the literal meaning of the 360 bis I-CCP.^[122] Hence, if the Court rejects the petition, the decision evaluates such petition as groundless. Consequently, the selection decision has to be taken concerning the case-law framework existing at the time of such decision and not at the time of the challenged decision or not when the petition has been submitted. Many commentators have privileged this position, considered in line with the purposes of the Article 360 bis I-CCP, i.e., strengthening the court’s Nomo-phylactic role and, hence, the uniform enforcement of the law.^[123] In the same line, another 2017 Supreme Court (Full Board)’s decision,^[124] even laying for a specific type of inadmissibility, i.e., inadmissibility over the subject matter, gained the same results of the 2010 decision in respect of the time of reference for the Court’s framework.

Nonetheless, other Supreme Court’s decisions took the inadmissibility path,^[125] following the line of other commentators,^[126] standing on a literal interpretation of the Article 360 I-CCP. Therefore, they ruled that the selection decision has to be taken regarding the case-law framework existing at the time of the submission of the petition, instead of the time of the Supreme Court’s selection decision. The first position reinforces Article 360 bis I-CCP and his purposes; on the contrary, the second position, with a rigid interpretation, empties its function and enforcement.

Likewise, on the issue regarding the meaning of “decisions of the Court” as a term of reference for evaluating the petition (and therefore the challenged decision), Supreme Court’s jurisprudence is highly detached. According to a part of case law,^[127] the concept of “decisions of the Court” should be referred only to landmark decisions issued by Supreme Court (Full Board); otherwise, according to other case law,^[128] even a sole precedent, if unambiguous, transparent and acceptable, integrates the “decisions of the Court” referred to in Article 360 bis I-CCP. The first position limits the Supreme Court’s authority over case selection, while the second position reinforces such authority.

The “filter” introduced and governed by the Article 360 bis I-CCP has launched the idea that even in a civil law system could be introduced forms of case selection based on the role of the precedents and, therefore, forms of discretionary jurisdiction of the Supreme Court over case selection (even if strictly) anchored to “decisions of Court”. Article 111.7 of the Italian Constitution does not allow, clearly, norms as stated in Rule 10 of the Supreme Court Rule where the latter specifies that “review on a writ of certiorari is not a matter of right, but of judicial discretion” or “writ of certiorari will be granted only for compelling reasons”. In other words, to be consistent with the Constitution, a selection toll included in the Italian justice system must clearly define the considerations for granting (or not granting) the review. Moreover, the “filter” has also conferred the idea of a system of justice as open-minded to the principle of stare decisis, where a precedent represents a guide for the appellant (in drafting the petition) and for judges (in issuing the decision). However, in light of the above description of the Supreme Court’s conflicts to enforce Article 360 bis I-CCP (and, therefore, its case selection duty), the filter showed all its weakness. Even a tool (the filter) introduced to enhance clarity over the law has become a source of ambiguity. Why? The answer should possibly go beyond the traditional debate aimed at giving more weight to the role of the Court as protector of individual rights (ius litigatoris) and therefore more devoted to limit the selective authority; or as an independent guarantor of the principles of the system (ius constitutionis) and therefore more inclined to selective methods based on the principle of stare decisis.^[129]

The answer – that will be analyzed better below in the light of Ginsburg’s thoughts and jurisprudence – pertains to citizens’ attitude towards the judges and – even more – towards the Justices. In other systems of justice (like the U.K. system or even the German system) citizens’ attitude of harden faith towards the institutions and, in particular, towards the judges (and the Justices), lays down a spontaneous acceptance of systems governed by rules of discretionary jurisdiction over case selection. Is there in Italy such a type of faith?

As said, the courts’ public acceptance decreases significantly since many believe that political struggles influence the court. Therefore, they generally rule to accomplish political demands rather than to serve justice.

Justice Ginsburg clearly outlined that the court should be “placed apart from the political fray” among her substitutes of consent. At her Confirmation Hearing, Justice Ginsburg indicated that stare decisis is one of “the restraints against a judge infusing his or her values into the interpretation of the Constitution”.^[130] When judges utilize the ruling as an incentive for injecting their personal beliefs, biases or preference into the law, the legitimation of the court is undermined.

Moreover, in Ginsburg’s view, maintaining the integrity of judicial institutions pass through their procedural accountability. However, the described Italian Supreme Court’s “filter” is a procedural rule that the Court does not apply uniformly, tending to two opposite stances aiming respectively, to reinforce and weaken the discretionary power in case selection of the Court. The schizophrenic approach of the Courts, even in respect of procedural rules, viz., the rules that should represent the highest level of certainty of the system of justice – create public doubt as to the objectivity of judges and drastically decrease respect for the tribunal.

The traditional debate regarding the role of the Court as protector of individual rights (ius litigatoris) or as an independent guarantor of the system’s principles (ius constitutionis) to trace the exact boundaries of the case the selective authority of the Court must be overcome. Back to front, the scholarly doctrine and the Court itself must enhance reflections around “the substitutes of consensus”. Getting a loan of the Ginsburg’s judicial philosophy, Italian civil justice should restart more by noninstrumental procedural values, rather than the instrumental ones, giving a predominant role to courts’ institutional legitimacy. The acceptance of the judicial discretion, the drop in courts’ docket, and the increase in efficiency become direct consequences.

3.3 The Res Judicata Pattern: A “Measured Motion” Towards Issue Preclusion?

From their beginnings, all systems of justice have delivered a core of res judicata comprising the substance of bar and defense preclusion.^[131] The universality of the res judicata derives from a universal institutional need: to be effective, judgments must be bindingness, and the minimal bindingness is that, except in specified circumstances, the disgruntled cannot undo a judgment to change the outcome.

On a general overview of the effects and no effects of the adjudication (i.e., matters immune or nonimmune to reopening), the res judicata may include a degree of either claim preclusion or issue preclusion. In fixing the definitive judgment’s boundaries above, the U.S. system encompasses both claim preclusion and issue preclusion. Under the U.S. view, issue preclusion should reach only matters that were actually litigated and determined, unlike claim preclusion, which reaches even matters that could have been but were not litigated.

While the Italian system (as all European-Continental systems) has a rigid system for issue preclusion: it tends to consider the judgment, and correspondently the relevant res judicata effects, to be indissolubly connected with the substantial rights forming the basis of the parties’ formal claims.^[132] To this effect, Italian statutory law encompasses only a limited version of claim preclusion and lacks the issue preclusion doctrine. The provision involved is Article 34 I-CCP indexed “prejudicial questions”. Even if this provision seems to be a rule on jurisdiction and its exception, its literal interpretation brings to the following conclusion: prejudicial issues are, as a general rule, decided without res judicata effect.

The gap between the U.S. system and the Italian system seems to be closed by “law in action”, which translated the minority scholarly reconstructions tending to extend the objective limits of res judicata until models of issue preclusion (beyond the strict letter of the law).^[133]

Following this path, the Courts have been called to remodel the boundaries of institution by way of an extension of the res judicata effects to all those issues which are the logical and juridical antecedent of the final decision.^[134]

This path of the “law in action” reached a significant step with the revirement recently operated by the Italian Supreme Court. With two landmark decisions dating back to 2014,^[135] the Full Board of the Italian Supreme Court has extended the preclusive effects of the decision to prejudicial issues (and thereby acknowledging some forms of issue preclusion), concerning a specific case, i.e., the nullity of the contract.

With 2014 decisions at stake, the Supreme Court has overturned its own precedents on the matter.

Firstly, the Supreme Court recognizes the power/duty of a court to ascertain the validity/nonvalidity of a contract ex officio, regardless of the subject of the party’s main relief. The issue of the nullity of the contract is, indeed, essentially connected to the party’s main relief since this relief aimed at enforcing rights which presumed the validity of the contract. Therefore, the court is empowered to declare the (in)validity of contract with res judicata effects even in the absence of an explicit demand from a party on that issue.

However, the 2014 decisions have gone even further. In light of reducing the backlog of Italian courts and enforcing the principle of judicial economy, the Supreme Court established that the lack of a recognition ex officio of the nullity of a contract is functionally equivalent to an implied finding as to its validity. Therefore, if the judge has not ascertained the nullity of the contract by its motion, nor the said issue has been raised and litigated by the parties, a decision in favor of the claimant’s complaint on the principal claim (e.g., for the fulfillment, termination, cancellation), once become final, may have the authority of implicit res judicata as to the ‘non-nullity’ (i.e., validity) of the contract.

The decisions at issue are noteworthy under two different aspects that the framework of Ginsburg’s thoughts and jurisprudence may help to discuss.

Firstly, the 2014 decision has extended the objective limits of res judicata but only regarding the nullity of the contract. The Supreme Court, indeed, has not addressed – perhaps consciously^[136] – the issue regarding all-purpose boundaries of Art. 34 I-CCP. Therefore, the traditional rigid system for issue preclusion, strictly related to the parties’ formal claim, remains for other prejudicial issues.

Secondly, the 2014 Supreme Court’s decisions seem to adopt a more radical position on issue preclusion than its U.S. counterparts regarding implicit res judicata regarding the “non–nullity” (i.e., validity) of the contract. They extended the res judicata effects even over an issue that the parties have not litigated, even going beyond an essential condition of U.S. issue preclusion. In the U.S. system, a condition allows the coordination of the decision’s effects with the constitutional principle of due process as set out in the Fifth and Fourteenth Amendments of the U.S. Constitution. To this effect, the mechanism drawn by 2014 decisions regarding an implicit form of res judicata may be arguable. It may result, indeed, in a potential violation of the constitutional right of defense (Article 24 of the Italian Constitution)^[137] and of the right to be heard (Articles 111.1 and 111.2 of the Italian Constitution).^[138]

Would the 2014 Italian Supreme Court decision-making on the issue of res judicata (as a step toward issue preclusion) follow Justice Ginsburg’s jurisprudential philosophy regarding the stare decisis? Can 2014 landmark decisions be considered as “a measured motion”? Could the reasoning be considered efficacy? Has the outcome of the decisions been “extravagant or divisive”?^[139]

The landmark decisions at stake have been embedded in a civil law system, where the measured motions outlined by Justice Ginsburg of the judicial power with the legislative branches should be more pervasive, as an inborn function of the system. Nonetheless, as the cases at stake, the courts occasionally use a “creative approach” without coordination with the legislative branches. This brings at issuing landmarks decisions, such as the ones under examination, that risk to remained as an isolated island, without a significant change of the rules they referred. As a first remark, on claim/issue preclusion, the Court’s path should be harmonized with the legislative power, with an incentive coming from the latter. In pragmatic terms, this means a reform of Article 34 I-CCP, yet proposed by scholars,^[140] aiming at introducing a form issue preclusion over prejudicial questions in the law in books, at least in case that the latter represent are the logical and juridical antecedents of the final decision.

Moreover, since the doctrinal path for the issue moved towards the extension of res judicata toward prejudicial questions,^[141] as well as the jurisprudence path^[142] (the innovation was in order^[143]), Court would have gone in-depth with its reasoning, showing a “clear outcome” (as a sort of clear winners). In this sense, even though an obiter dictum, the Court should have reversed its reasoning towards the res judicata over the prejudicial questions, instead of only over the nullity of the contract. To create a precedent one upon the others, the core of the overruling should be the res judicata towards the prejudicial questions and, thus, the motives of the decision should move in this direction, even if applied only to nullity, clearly enhancing the justifications that allow the reveriment. Instead, the sentence’s motives seem to be strictly referred to as the “special case” of nullity, as an exception among the possible res judicata issues. Thus, the reasoning 2014 decisions seem to be labile and unstable since it did not create a more general rule for allowing the lower courts to gradually build a set of precedents that would bring the res judicata on prejudicial questions closer to forms of issue preclusion. If this had occurred, even the legislative branch would imaginably have been more sensible to amend Art. 34 I-CCP.

The Court, besides setting an implicit form of res judicata also went too far. In a (civil) system that is still far from introducing a rule that extends the res judicata over prejudicial questions, without a specific claim on the issue, forms of implicit res judicata lead to an even more fierce debate by opposers of the issue preclusion doctrine. Legal changes, indeed, should emerge “through a temperate brand of decision-making, one that was not extravagant or divisive”.^[144]