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10/13/2020

Keith Whittington (and Others) on Judge Barrett on Originalism and Precedent
Michael Ramsey

At Volokh Conspiracy, Keith Whittington: Amy Coney Barrett Is No Extremist on Stare Decisis.  From the beginning:

At the New York Times, I have a new piece about Professor Amy Coney Barrett's writings on precedent and stare decisis. This was a significant component of her research agenda as a scholar, and it has come under new scrutiny now that she might be able to put some of her ideas into practice as a justice on the U.S. Supreme Court.

Although critics have decried her as an extremist on stare decisis, I am more impressed by the extent to which her scholarship was designed to push originalists toward a more moderate and more mainstream position on the question of the authority of erroneous precedents. She may not preserve your favorite precedents as a justice, but that does not mean that she is a radical in regards to stare decisis. For better or for worse, she is no Clarence Thomas on the virtues of casting misguided precedents aside.

I agree, particularly from my memory of her talk at the 2016 Notre Dame symposium on Justice Scalia's jurisprudence (which became this article): her main goal, as I recall, was to defend Scalia's view of precedent against more radical originalist approaches.

RELATED:  Also at Volokh Conspiracy, Dale Carpenter: Two Questions for Judge Barrett About Stare Decisis.  Here's the first question:

Your version of the weak presumption of stare decisis in constitutional law cases seems to go like this: If a justice is only weakly convinced that a precedent is wrong (say, 51% convinced) then even a small amount of reliance on the precedent (or other institutional interests) might cause her to stand by the erroneous decision.

But if a justice is completely convinced that a precedent is wrong  (say, 100%), then the precedent should be overruled no matter how weighty the reliance or institutional interests.

(For now, let's leave aside the status of so-called "super-precedents" like Marbury v. MadisonBrown v. Board of Education, the Legal Tender Cases, and so on, for which there is broad executive, legislative, judicial, and popular support.)

Is this a fair characterization of your view?

I think her answer would be "no" -- very weighty reliance or institutional interests can overcome even certainty that a decision is wrong.  I also think that was Justice Scalia's view.  I'm not sure, though, to what extent that's incorporated into Professor Carpenter's parenthetical on superprecedents.  Isn't a "superprecedent" just one with very weighty reliance or institutional interests?

(Aside: I think there are few if any originalists who think Marbury v. MadisonBrown v. Board of Education, and the Legal Tender Cases are examples of cases that are certainly wrong on originalist grounds.)