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09/17/2020

Randy Barnett on Stare Decisis and Originalism
Michael Ramsey

At Law & Liberty Forum, Randy Barnett: Stare Decisis for Originalist Judges.  From the conclusion:

Is there, then, any proper role for horizontal stare decisis at the Supreme Court? I think so. Supreme Court justices should give “weight” to previous opinions of the Court that a justice is satisfied utilized originalist reasoning in good faith. The reason for this is epistemic. Careful originalist research is often difficult and time-consuming. And we cannot be confident of the conclusions of originalist analysis until it is subjected to genuine peer review by other knowledgeable originalist scholars holding different views.

For this reason, originalism requires a division of labor between scholars who research original meaning in advance of a particular case or controversy and an originalist judge or justice who must decide many cases under the pressure of time. Once the Court has reached a conclusion on the basis of peer-tested originalist scholarship, therefore, there are good prudential reasons for other originalist justices to defer to that conclusion unless and until it is called into question by sufficiently persuasive competing originalist scholarship. And they might even impose some burden of proof on advocates claiming that a previous opinion grounded in good faith originalism was in error.

Because time is scarce, there is also a reason to adhere to nonoriginalist precedent in a case where that precedent leads to results that are consistent with original meaning—where adhering to originalism would not change the result. On the other hand, adopting originalism in such cases makes transitioning to a more consistently originalist jurisprudence less costly. Indeed, there are sound originalist justifications for much of modern constitutional doctrine, and it would bolster the case for originalism for this to be more widely known.

Where a big change in the doctrine is warranted, however, an originalist majority—should we ever get one—might “stay” their ruling to provide time to amend the Constitution the right way: through Article V. They might even urge (in dicta) that such an amendment should be enacted, while affirming their own powerlessness to amend the Constitution themselves. If a previous nonoriginalist precedent has truly become “grounded in deep-rooted traditions of law, politics, and culture,” an Article V amendment would likely be forthcoming. This used to be our practice. Reviving the culture of amending the Constitution via the states—rather than via a majority of the Supreme Court—would be healthy for our politics and our culture.

Professor Barnett's contribution is a comment on this essay by Marc DeGirolami; as noted, Ilan Wurman also had an essay in response.