Barnett Responds on Originalism and Stare Decisis

Professor Randy Barnett (Georgetown), a leading scholar and exponent of originalism, has a response to my essay on integrating originalism and stare decisis. Here is a bit from his essay:

Let me now turn to the issue of whether the Supreme Court is bound to follow its own previous erroneous decisions. This is called “horizontal stare decisis.” To begin with, it’s important to observe that the Supreme Court does not treat its previous decisions as binding in the same sense that lower courts do. And it never has.

True, the justices do periodically invoke the doctrine of stare decisis and attempt to explain when prior decisions should be followed or not, as Justices Kennedy, Souter, and O’Connor did in Planned Parenthood v Casey. But quite unlike the inferior courts, the Supreme Court has always asserted the power to overrule its own prior decisions—even if a precedent is longstanding and even if it has been reaffirmed on many occasions. For example, in Brown v. Board of Education, the Supreme Court refused to adhere to the “separate but equal” rule it had established almost 50 years earlier in Plessy v. Ferguson.

For some justices, Roe v. Wade is currently and will always be in play. For other justices, Citizens United and D.C. v. Heller and a host of Rehnquist Court decisions are susceptible to reversal as soon as they have the votes. And, lest we forget, modern originalism arose in response to the New Deal, Warren, and Burger Court’s wholesale rejection of many precedents that stood in the way of their progressive political agenda.

This means that, unlike inferior court judges, an originalist Supreme Court justice—like every justice—has the option of voting inconsistently with previous Supreme Court decisions. Indeed, because the Supreme Court’s rulings are “final” within the judiciary, future justices must be free to vote otherwise so the Court’s errors can be corrected.

In this regard, Professor DeGirolami’s proposal that justices respect precedents that have become “grounded in deep-rooted traditions of law, politics, and culture” may or may not be a good idea. But it is not itself grounded in our deeply-rooted traditions of law, politics, and culture. Like originalism, his is also a reform proposal that would require “buy-in” by justices to become our practice. No doubt there is a normative case to be made for such a proposal. But so too is there a normative case to be made for judges to adhere to the original meaning of the text whenever a faithful application of that text leads to a particular result.

And that’s what’s missing from Professor DeGirolami’s proposal: any imperative to bring the precedents of the Supreme Court gradually into alignment with the original meaning of our written Constitution. Without that imperative, stare decisis becomes the “exception” that swallows the Constitution. It can also be invoked selectively to avoid originalist results a justice does not like—or ones that would be unpopular. Such opportunism by “originalist” justices undermines originalism.

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