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.

Judicial Supremacy: Not So Bad

At the Law & Liberty site today, I have a review of Louis Fisher’s new book on judicial supremacy, Reconsidering Judicial Finality. Contra Fisher, I argue in favor of judicial supremacy, properly understood as a rebuttable presumption that Court rulings are binding on other political actors and the people as a whole. Here’s an excerpt:

But the better view, and the one most scholars would take, is that Court judgments are presumptively binding in this broader sense. In the great sweep of our constitutional history, resistance to Court rulings has been comparatively rare. The strength of this presumption is impossible to state in categorical terms. Richard Fallon offers a good way to think about it. Judicial supremacy means that “judicial rulings must be obeyed as long as they are intra rather than ultra vires”—that is, as long as they are plausibly “within a court’s authority to render”—and “not unreasonable as judged from the perspective of the President and a majority of the American people.” If our constitutional democracy is tolerably functional, occasions for resisting Court rulings will arise relatively infrequently.

Note that, on a proper view of judicial supremacy, the Court remains free to change its mind and rule differently in subsequent cases. And political actors, as well as the public at large, remain free to try to persuade the Court to do so. After all, unless some litigant brings a challenge, the Court will never have an opportunity to revisit an earlier decision. Lincoln put it well in responding to the Court’s disastrous ruling in the Dred Scott case (1857), in which the Court held that the Constitution did not allow African-Americans to be citizens or Congress to outlaw slavery in federal territories. The Court’s decisions on constitutional questions, Lincoln conceded, “should control, not only the particular cases decided, but the general policy of the country.” Nevertheless, “[w]e know the Court . . . has often overruled its own decisions, and we shall do what we can to have it overrule this.” . . .

Fisher is unfortunately dismissive of arguments in favor of judicial supremacy. “No matter what evidence is presented,” he writes, “some scholars and courts will continue to rely on and promote the doctrine of judicial finality.” But it is not simply obstinance. Good arguments exist for judicial supremacy, including the desirability of settling legal questions and promoting reliance on the part of citizens, who need to know what the law requires at any particular time. Besides, the logic of judicial review itself suggests some sort of judicial supremacy. The Constitution is not simply what the Court says it is; but if the Court’s decisions are not broadly authoritative, constitutional impasses will occur much more frequently—not the end of the world, but not the best situation, either.

You can read the whole review here.

Wurman Responds on Originalism and Stare Decisis

Professor Ilan Wurman (ASU) has a very good response to my piece on integrating originalism and stare decisis. Here is a little from the conclusion of his piece:

To summarize, any theory of precedent must recognize, as does Professor DeGirolami’s, that stare decisis is valuable “because it supports legal continuity as a common, human project over a particular judge’s unconstrained sense, in a single time and place, of the correct outcome.” But this requires a chain of decisions over time, and not a single Supreme Court decision; recognition that ultimately these decisions over time matter only because the numerous individuals at different times and places that have agreed are more likely to have agreed on the correct answer; and that the correct answer must be within the range of possible original meanings. Only by understanding these points can we see how it was possible for the Founders themselves to think that judges would be both originalist and bound by precedent.

On Originalism and Stare Decisis

I have this essay at the Law and Liberty blog on what I consider to be a problem for originalism–its capacity to integrate stare decisis. Along the way I discuss the virtue of legal endurance and pieces of my traditionalist approach to understanding the Constitution. The piece will receive responses from Professors Randy Barnett, Jesse Merriam, and Ilan Wurman. A bit from the end:

“Again: why is stare decisis valuable in constitutional judging, and when is it especially so? These are the questions that originalists must ask. Some scholars have begun to do so. Professor Randy Kozel, for example, argues that stare decisis’s normative foundations in constitutional judging are rooted in the legal values of stability and “impersonality,” as contradistinguished from the changeability and passion of politics. As he puts it: “Calendar pages turn and political winds shift, but the law is still the law.” Impersonality is especially necessary given the welter of interpretive and methodological pluralism in constitutional law. So long as that pluralism exists (and that is likely to be a long time), Kozel contends that stare decisis will be normatively desirable as a constraint on judges.

Kozel is asking the right questions, and his normative account of stare decisis goes some distance to explaining its importance in constitutional law. An even thicker account would recognize not merely the fact of the problem of pluralism mitigated by the constraints of stare decisis, but that the central virtue of stare decisis is in promoting the law’s endurance. Such an account would internalize Kozel’s distinction between law and politics. It would pick up on the clues dropped by the justices in cases like GambleMesa, and Ramos that stare decisis is far more powerful when the Court confronts ancient, long-standing, and continuous precedents than it is when the precedent at issue is “unmoored” from the adjudicative firmament. It would prize stare decisis especially, as Justice Thomas recognized in his Mesa concurrence, when the historical sweep of judicial precedents is connected—moored, as it were—to political and cultural practices of similar age and endurance. It would acknowledge that these virtues of stare decisis may be just as powerful whether the rationales supporting them are “deliberated” (in the liquidated sense) or not, whether re-ratified in a way that seems compelling to present judicial and academic sensibilities and investments or not. The sheer endurance of any precedent is intimately connected to its lawlike properties, though common law, constitutional, and statutory precedents may have different time horizons for these purposes.

Stare decisis is not about following the most recent case. It is not, as Chief Justice Roberts wrongly claimed in June Medical, about simply “treat[ing] like cases alike” and voting for something today that one thought was wrong four years ago. It is instead, as Justice Thomas rightly countered in the same case, about “fidelity…which demonstrates ‘reverence to antiquity.’” It is about picking up the legal thread connecting a long and lasting line of cases. Where the Court confronts precedents of great age, endurance, continuity, and connection to similarly ancient and longstanding common, popular practices, the virtues of legal stability fostered by stare decisis are especially potent. Such precedents are also, as it happens, likely (though not certain) to be consistent with, even if not mandated by, the Constitution’s original public meaning. It stands to reason that stare decisis will exert a particularly strong gravitational pull on constitutional adjudicators in those circumstances. Indeed, for the Court, it already has. No “demonstrably erroneous” precedent—let alone an indelibly evil precedent—should ever survive, irrespective of its lineage. But for the considerable quantity of constitutional precedent that does not fall into this category, and with time, judges might use the deep-rooted traditions of law, politics, and culture, to integrate originalism and stare decisis.”

At SCOTUS, a Compromise on Religious Liberty

At the First Things site this week, I have an essay on last term’s Religion Clause cases at the Supreme Court. I argue that the cases reflect the Court’s attempt to reach a modus vivendi in the culture wars between progressives and the traditionally religious on issues of sexuality, gender, and equality. Taken together, the cases suggest the Court is prepared to acquiesce to the dominant progressive consensus while allowing religious institutions some space to dissent. 

Here’s an excerpt:

Bostock suggests the Justices, including conservatives like Gorsuch and Roberts, are prepared to accede to the progressive view of sexuality and gender. But the Court’s hints about lingering free exercise issues imply it will afford religious institutions space to dissent. Other decisions from last Term confirm this reading. Take Espinoza v. Montana Department of Revenue, the Blaine Amendment case. The Court held, 5-4, that the Montana Constitution’s Blaine Amendment, which prohibits state funding for private religious schools, violated the First Amendment’s Free Exercise Clause. A state may not exclude schools from a funding program simply because of the schools’ religious “status” or “character,” Chief Justice Roberts wrote. “A State need not subsidize private education,” he explained. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Espinoza is a case about equality, but also has implications for debates surrounding sexuality and gender. It’s no secret that many, if not most, private religious schools hold to traditional understandings of sexuality and gender. In fact, parents often choose to send their children to religious schools precisely to avoid the progressivism that pervades public education. Allowing religious schools to receive public assistance on an equal basis with secular schools could make it easier for the traditionally religious to pass on their values to the next generation. 

The Court’s holding that in principle the state must afford benefits to private religious schools on an equal basis with private secular schools is thus important for the traditionally religious. Still, the Court’s focus on a school’s religious “status” raises some questions. Even if discrimination on the basis of a school’s religious affiliation is illegal, it remains unclear, under the Court’s decision, whether a state may restrict funding because the school’s program is at odds with progressive understandings of equality. The Espinoza Court left that question open, though it hinted that discrimination based on a school’s religious “use” of state funds also could be constitutionally problematic.  

You can read the full essay here.

Tocqueville on the American and French Revolutions

The American and French Revolutions are often thought of as entirely distinct types. But was there a connection? Here’s a little cold water thrown on the claim of distinctiveness by Tocqueville, from The Old Regime and the Revolution (201, Furet & Melonio, eds):

Our revolution has often been attributed to that of America: in fact, the American Revolution had a lot of influence on the French Revolution, but less because of what was then done in the United States than because of what was being thought at the same time in France. While in the rest of Europe the American Revolution was still nothing but a new and unusual fact, among us it only made more evident and more striking what we thought we already knew. It astonished Europe; here, it completed our conversion. The Americans seemed merely to apply what our writers had thought of: they gave substantial reality to what we were dreaming about….

The writers not only furnished their ideas to the people who made the Revolution; they also gave them their own temperament and disposition. Under this long training, in the absence of any other directors, in the midst of the profound practical ignorance in which they lived, the whole nation ended up adopting the instincts, the attitudes, the tastes, and even the eccentricities of those who write; with the result that when the nation finally had to act, it brought all the habits of literature into politics.

When we study the history of our Revolution, we see that it was carried out in precisely the same spirit in which so many abstract books on government are written. The same attraction for general theories, for complete systems of legislation and exact symmetry in laws; the same contempt for existing facts; the same confidence in theory; the same taste for the original, the ingenious, and the new in institutions; the same desire to remake the whole constitution all at once, following the rules of logic and according to a single plan, rather than trying to fix its various parts. A frightening sight! For what is merit in a writer is sometimes vice in a statesman, and the same things which have often made lovely books can lead to great revolutions.

Happy Independence Day…

Deferring to Local Authorities in a Public Health Crisis

At the First Things site today, I have an essay on the current round of church closures cases. To understand these cases, one has to cut through doctrinal details and focus on the factor that most drives the judges’ decisions: the need to defer to public health authorities during a crisis. That’s usually sensible. Judges are not epidemiologists, and they are not accountable if they get things wrong. But local authorities have begun acting in ways that betray that trust:

In the last couple of weeks, local authorities have squandered much of their credibility. For months, public health authorities have told Americans that gatherings of more than a few people, even outdoors and with social distancing, should not take place because of the grave risk of contagion. Families could not even have funerals for loved ones. Now, however, many of those same public health authorities say (while others remain silent) that mass protests can and should go forward, given the issues involved. Combatting racism and police brutality is profoundly important. But that’s a separate question from whether the gatherings pose a public health risk. As Ross Douthat wrote, the virus doesn’t care why someone is protesting. 

Moreover, in making these arguments, some local officials have expressly disparaged religion. Here in New York, Mayor de Blasio used dismissive terms to explain why the city has permitted protests but forbidden Hasidic funerals: Religion, the mayor said, was simply not as important. The mayor is entitled to his opinion; probably most New Yorkers agree with him. But his statements—and those of other elected officials—should make courts skeptical about deferring to the judgment of local authorities.

You can read the essay here.

Some subversive thoughts on free exercise doctrine…

Occasioned by the Court’s decision last weekend in the South Bay United Pentecostal Church case, over at the Volokh Conspiracy. I note that neither the Chief Justice nor Justice Kavanaugh bothers to cite Employment Division v. Smith, the central case in the area, and wonder how much doctrine drives decisions:

For both the Chief and Justice Kanavaugh, then, the case came down to judgments about which activities are “comparable” and about how much deference to give elected officials during a public-health emergency. For what it’s worth, I think the Chief had the better of the argument. But the point I’d like to focus on is this: both the Chief and Justice Kavanaugh made these judgments quickly on the basis of broad principles and common-sense assumptions. I have already noted how neither of them even referred to Smith, the controlling case in this area. No doubt, the need to decide this interlocutory application speedily precluded a more thorough legal analysis. But these opinions make one wonder whether the doctrinal superstructure of free exercise clause jurisprudence, which students, professors, and lawyers pore over with great care, has all that much importance, in the end. Perhaps free exercise cases always come down to quick, intuitive judgments—however judges explain their decisions after the fact.

You can read the whole post here.

Church Closings during COVID: The State of Play

At the Law and Liberty site this morning, I have an essay on current litigation regarding church closings during the coronavirus epidemic. I explain why courts have reached different results, and ask why some churches, rather than others, are bringing the lawsuits. Here’s an excerpt:

So far, the lawsuits have achieved mixed results. Federal district courts in California and New Mexico, for example, have rejected challenges and ruled that the bans in those states are constitutional. Federal district courts in Kansas and Kentucky, by contrast, have ruled that the bans in those states do violate the First Amendment. This past weekend, the Sixth Circuit agreed, holding that Kentucky’s ban on church services violates the Free Exercise Clause.

These cases are very fact-specific and turn on the specific language of the bans in question. But there is another, more important reason for the courts’ division. The law with respect to religious exemptions is quite indeterminate. Under the Supreme Court’s landmark ruling in Employment Division v. Smith (1990), no right to an exemption exists where a law is neutral and generally applicable, that is, where the law does not target religion for disfavored treatment. If a ban on public gatherings qualifies as a neutral and generally applicable law, a church cannot prevail.

If a law targets religion for disfavored treatment, by contrast, a church may have a right to a religious exemption—but not where the state can show that it has a compelling reason for enforcing the law against the church and has chosen the least restrictive means of doing so. As many have noted, this form of “strict scrutiny” essentially operates as a balancing test that requires judges to weigh the seriousness of the burden on religious exercise against the significance of the goal the state is trying to reach. If the goal is sufficiently important, the law will stand, regardless of the burden on religious exercise.

Both these questions—whether a law is generally applicable and whether the burdens of a ban outweigh its benefits—leave much to the discretion of individual judges….

You can read the whole essay here.

More Thoughts About Equal Treatment and the Coming Disagreements

I have a follow-up post at Mirror of Justice to the post immediately below. A bit:

But as the crisis reaches a second stage–an emergency of a different kind, now a more chronic or enduring condition–and as discretionary government decisions are made both as respects relaxing the closures and prosecuting violations of rules, the powerful psychological draw of equality as equal treatment starts to assert itself. Discretionary decisions require discrimination, and it’s at this point that considerations of unfairness become stronger in people’s psyche.

The trouble is that resentments about unequal treatment depend upon other, deeper judgments about the nature and value of various kinds of human activities. These judgments are signaled by the use of terms like “essential” but they aren’t really resolved by them. Partisans of one or another sort of human activity or way of life then develop arguments for distinguishing the truly essential from the less essential, but these are invariably thought to be spurious or worse by partisans of another sort of human activity or way of life. The arguments about equality really are only cover for other sorts of arguments that it would not be possible to resolve without the rhetorical appeal to equality. The real disagreements go not only to different ways of life, but to different conceptions of the good or goods of any particular human activity. Consider religious observance. If one’s view is that all of the true goods of religious observance can be obtained individually, at home, in solitary prayer in front of a screen, then one will think that distinguishing between churches and liquor stores–treating the goods of the human activities that these places foster unequally–is perfectly justified. But if one’s view of the true goods of religious observance is very different, then one will not accept these arguments.

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