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09/27/2020

Ed Whelan on Judge Barrett on Stare Decisis
Michael Ramsey

At NRO Bench Memos, Ed Whelan: Judge Barrett on Stare Decisis.  The post highlights these two key articles on the topic by Judge Barrett:

Precedent and Jurisprudential Disagreement, 91 Texas L. Rev. 1711 (2013)

Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017)

On the first:

In “Precedent and Jurisprudential Disagreement,” Barrett responds to academics who “have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule.” In particular, she argues that “one virtue of the weak presumption is that it promotes doctrinal stability while still accommodating pluralism on the Court.” She also argues that stare decisis is just one of many features of our judicial system that promotes doctrinal stability.

Look for Barrett’s critics to obscure the fact that Barrett is defending the Court’s existing “weak presumption” of stare decisis, not calling for a weaker version.

On the second:

In “Originalism and Stare Decisis,” written after Justice Scalia’s death, Barrett explores Justice Scalia’s approach to precedent and the question whether stare decisis is compatible with originalism. She disputes the claim that originalism without stare decisis would produce chaos: “This threat is vastly overstated, because no originalist Justice will have to choose between his principles and the kind of chaos critics predict.” In particular, a “combination of rules—some constitutional, some statutory, and some judicially adopted—keep most challenges to precedent off the Court’s agenda.”