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12/08/2018

John McGinnis on Originalism, Stare Decisis and Justice Kavanaugh
Michael Ramsey

At Liberty Law Blog, John McGinnis: Is Justice Kavanaugh Grievously Wrong on Stare Decisis?  It begins: 

Yesterday the Supreme Court heard an important case, Gamble v. United States, on the Double Jeopardy Clause. The question presented is whether successive prosecutions by state and federal governments for the same offense violate the Clause. The decision will be as salient for constitutional methodology as it is for the relatively few defendants it will affect.

The attorney for the defendant in this case presented substantial evidence that at the time of the enactment of the Constitution, double jeopardy in English law was understood to bar successive prosecutions by England and a foreign government. That history provided the best window into the scope of double jeopardy and sovereignty in 1789 and ruled out prosecution by different sovereigns. Indeed, a fortiori, the Clause, he contended, should bar successive prosecutions by the state and federal government, because the dangers of collusion are even greater between these sister actors.

For the purposes of this post, let’s assume that the defendant has the better of the historical argument. That seemed to be the assumption of most of the justices. The obstacle to his winning is a series of cases that have held the Double Jeopardy Clause does not bar prosecution by both the state and federal government, precisely because they are separate sovereigns. The question therefore is what weight should be given to precedent when it conflicts with a better understanding of the original meaning of the Clause.

Unfortunately, Justice Kavanaugh seemed to suggest that a venerable rule in case law should be overruled only if it were “grievously wrong.” That seems to me to be itself a grievously wrong standard. First of all, it’s not clear it is a rule. “Grievously wrong” seems open-ended and invites a decision about how good the prior case is as a matter of policy in the Justice’s view—even if it is wrong as a matter of interpretation. I agree that with Kavanaugh that Constitution contemplates stare decisis, but there is no evidence that it contemplates that standard.

Agreed.  Also, the problem with invoking that standard where it would defeat a liberal result (as in Gamble) is that one might not want to invoke it in a case where it would defeat a conservative result (as in, say, a case calling on the Court to overrule Morrison v. Olson).  But perhaps the bigger problem is that neither originalism nor the Court has a well developed theory of precedent.