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Josh Hammer: Overrule Stare Decisis
Michael Ramsey

Josh Hammer (Edmund Burke Foundation; Newsweek) has posted Overrule Stare Decisis (National Affairs, Fall 2020) (14 pages) on SSRN.  Here is the abstract:

Few doctrines in originalist constitutional scholarship are as contested as stare decisis—that is, the weight to which precedent ought to be, or constitutionally even can be, considered by judges and other constitutional actors when such precedent conflicts with the original understanding of a specific constitutional provision in question.

This essay, written in the aftermath of Justice Clarence Thomas's clarifying concurring opinion in the 2019 case of Gamble v. United States, argues that the Constitution itself affirmatively forbids reliance upon demonstrably erroneous precedent that conflicts with the original understanding of the Constitution. It argues that originalists who argue for a greater role for precedent in constitutional adjudication, such as the late Justice Antonin Scalia, err in doing so.

An excellent summary of the arguments, whatever one thinks of the conclusion.  Among other interesting points (p. 8):

Thomas’s concurrence in [United States v.] Gamble also relied heavily on [Professor Caleb] Nelson’s scholarship on the founding-era process of liquidation. As the term “liquidation” was understood by founding-era political and legal luminaries, the iterative actions of constitutional actors—of both judicial and nonjudicial varieties—could help, in the early stages following the enactment of a genuinely obscure or ambiguous constitutional provision, assist in discovering and ultimately ascertaining the meaning of that provision. Citing Nelson’s 2001 essay that brought the concept of
liquidation to the forefront of originalist scholarship, Thomas opined that a precedent “may remain relevant when it is not demonstrably erroneous.”

The key word for Thomas is “relevant.” Whereas Nelson persuasively cites Madison’s late-stage “flip-flop” on the issue of the constitutionality of the Bank of the United States to support the contention that a “sufficiently deliberate course of legislative or judicial decisions” can “settle” the meaning of a genuinely obscure legal provision and therefore actually bind future actors, Thomas refrains from going quite that far. Thomas does not view the iterative liquidation process as binding, per se; he merely suggests that if an ambiguous legal provision has been liquidated in a way that is not  demonstrably erroneous from the perspective of original-public meaning originalism, then it is permissible for a later court to adhere to that liquidated provision even if it would have ruled differently as an issue of first impression.

This passage invites two questions about Justice Thomas' view.  First, what does it mean to be "demonstrably erroneous"?  The passage suggests (correctly, I think) that his "demonstrably erroneous" means something more than "more likely erroneous than not."  But how high a standard is it:  beyond a reasonable doubt/clearly erroneous? Or something in between?

Second, if it's right that a precedent that is likely wrong but not "demonstrably erroneous" is only "relevant" but not decisive to future cases, what else goes into the evaluation of whether it should be followed?  At this stage does the judge consider matters like reliance interests?