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06/29/2019

Ilya Somin on Precedent
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: The Rights and Wrongs of Overruling Precedent.  The core conclusion:

The justices' highest legal obligation is not to the Court's past precedents, but the Constitution. If they are convinced that the latter conflicts with the former, they should overrule, if at all possible. There is a good case for adhering to precedent in situations where the court is uncertain whether it is correct or not. In such situations, it might be reasonable to defer to the seeming accumulated wisdom of earlier judges, especially if there was a broad cross-ideological consensus among them. As noted above, I think it is also justifiable to maintain wrong precedent in some instances where massive reliance interests would be upset otherwise.

With some interesting points about precedent, originalism, and living constitutionalism:

Ironically, living constitutionalists (the school of thought to which most liberal judges adhere) probably have more reason to oppose strong rules of stare decisis than originalists do. One of the tenets of most versions of living constitutionalism is that we need to update constitutional doctrines to take account of new knowledge acquired over time. If so, today's judges are more likely to get issues right than those of earlier eras (other things equal); not because current judges are necessarily smarter or more virtuous than their predecessors,  but because they have the benefit of greater knowledge acquired through a longer period of historical experience.

Originalism's connection to precedent is more ambivalent, and originalists in fact disagree among themselves about how much deference to give it. Judges from some earlier eras might sometimes have greater insight into original meaning than today's jurists do, at least in the case of those who personally lived through the period when the relevant constitutional provisions were drafted and ratified. On the other hand, later judges often have access to superior methods for determining original meaning, as there have been numerous methodological improvements in originalist legal theory in recent years. Moreover, the potentially superior insight of earlier judges is only relevant—from an originalist point of view—when those judges' decisions actually tried to apply originalism. In many cases, their decisions were based on other methodologies.

Furthermore, while originalists are committed to a fixed textual meaning, they also recognize that doctrine can change over time when a fixed meaning is applied to new facts, or to a better understanding of old ones. That too can justify overturning precedent.

Overall, I think those originalists who give constitutional precedent only modest weight have the better of the debate, in my view. And living constitutionalists have even more reason to be skeptical of strong forms of stare decisis.