Paradox of Self-Amendment by Peter Suber B. Judicial self-amendment The reason that judicial amendment of the AC is not self-amendment is simply that no power is used to modify itself. But conceivably the power of judicial amendment may modify itself. The most splendid example is undoubtedly London Street Tramways Co. Ltd. v. The London City Council (1898) A.C. 375.[Note 20] For centuries the English parliament had followed its own precedents. It therefore had abundant precedent to follow precedent, which was a good reason to continue, but it had no explicit rule of law that said it must follow precedent. In London Street Tramways Parliament was asked, in essence, to reverse an earlier opinion. In ruling that it should not reverse itself, Parliament articulated for the first time as holding (not merely dictum) that as a judicial body it is bound by its own precedents. The self-amendment has not yet occurred, although something else of reflexive importance has occurred. The new rule of law that Parliament is bound by its own precedents is merely a decision of case law. Hence the only force it can exert on future decisions is that of a precedent. Hence, the rule to follow precedents was self-justifying. As long as precedents were respected, London Street Tramways would require us to respect precedents. If a court ever decided to reject precedents, London Street Tramways would not stand in its path, for it is only a precedent. If you believe that witches always lie,[Note 21] then you will not believe a witch who tells you that you are wrong. In that sense, the holding was logically superfluous even if it articulated an important rule of law. Self-amendment occurred when London Street Tramways was overruled! In the Hansard Report (July 26, 1966), Lord Gardiner announced the self- amendment of the power of judicial amendment or the reversing of precedent in order to permit the reversing of precedent. The rationale was to preserve the omnipotence of Parliament. If Parliament could not "depart from a previous decision when it appears right to do so" then an accumulation of bad judgments could seriously limit the power of Parliament and consequently undermine its sovereignty. The overruling of London Street Tramways asserted in effect that Parliament had continuing omnipotence, for it had rendered a limitation on its power revocable. The proof is stronger because the limitation on its power was by its original nature irrevocable —that is, in its own terms, London Street Tramways could not be overruled without violating the law. The effectiveness of the overruling shows that Parliament really had continuing omnipotence, not merely that it strove to have it. The most interesting point is that it might not have had it until it reached for it, acquiring it by self-amendment. There are no American cases of the self-amendment of the power of judicial amendment that are nearly so dramatic. But there are many ways in which judicial self-amendment can arise in the United States. For example a Supreme Court composed of new, conservative appointees may exercise its customary power of judicial amendment to limit its future use. It might do so by using the power of judicial amendment to set precedents adverse to its future use (adverse in their holding or dicta, not in their method) and by selectively overruling the decisions that support its use. Such self-amendment could not become strongly paradoxical unless the self-limiting exercises of the power could plausibly be seen to affect their own validity, not merely the validity of bygone instances and future lapses. But the right and duty to interpret, which is inseparable from adjudication, seems to give all otherwise valid judicial pronouncements a modicum of license that preserves them from self-invalidation. That is, judicial use of judicial amendment could limit its future use, but could probably not destroy itself utterly, and could not in any case prevent its use so completely that the preventive judgment was itself prevented. Of course this view of the matter presupposes that, to some extent (which may be tiny indeed) judicial amendment is inevitable as long as interpretation itself is permitted. The self-amendment of the power of judicial amendment might occur in another way. A recent strategy of the radical right in the United States is to attempt to limit the jurisdiction of federal courts over issues, such as school prayer and homosexual rights. If Congress passed such a bill, it would attempt to repeal a rule of change for the constitution which, if permitted, would show a reflexive wrinkle in the hierarchy of the federal government. If the limitation was challenged in federal court, then the forum would be put to the choice of (1) upholding a limitation on its power, which implies either a measure of superiority to the limitation or self-amendment, (2) modifying or nullifying the limitation, which in the right circumstances could be the self-amendment of the power of judicial amendment, or (3) refusing to hear the case as injusticiable, a political question, beyond its jurisdiction, or something else. We may assume that the Supreme Court could not take the third option except in cowardice. If the statute limiting federal court jurisdiction were self-entrenched, denying the jurisdiction of federal courts even to review its constitutionality,[Note 22] then the Supreme Court could still take jurisdiction. Taking and not taking jurisdiction in such a case would both amount to a partial decision on the merits prior to a full hearing on the merits. Seeing itself obliged to "know before it knows" (see Section 20) in either case, it could take jurisdiction in order to be able to decide more of the issues on their merits than otherwise, and even in principle to undo its original "error" by dismissing for lack of jurisdiction. If Congress has the power to limit federal court jurisdiction, then a federal court nullification of the limitation would be a case of judicial power rendering its limitations revocable, a feature of continuing omnipotence. If the power of judicial amendment had continuing omnipotence, then Congress would not have the power to limit it. So if Congress did have the power and courts nevertheless did nullify the limitation, then the power of judicial amendment would have increased itself by self-amendment, much like Parliament in reversing London Street Tramways. If the limitation was of dubious constitutionality, then a federal court nullification might be construed as a much weaker type of judicial amendment —merely the settling of a previously unsettled question. A final sense in which the power of judicial amendment may amend itself derives from the finality of Supreme Court decisions, subject only to overruling by formal amendment, subsequent overruling by the Court itself, or another of the unofficial methods of amendment. Against a movement to abolish the power of judicial amendment, courts would have the power to protect themselves up to a point. If courts precipitate a 107