I was hesitant when the editors approached me to write something about originalism and stare decisis. The nature of this relationship has become one of the central questions for originalist judges and scholars, and an essay like this one cannot do justice to the range of answers now in research and development. Also, while I am moderately originalist-positive (some of my best friends, etc.), there are many other far more established (in the dual senses of “recognized” and “committed”) originalists roving about. It seemed presumptuous to undertake to describe the state of the art without being properly a member of the school. Yet it may be that a summary evaluation from an external, but not unsympathetic, perspective is the sort of intermediate-distance intervention that could offer something distinctive from a more committedly pro- or anti-originalist perspective.

This essay gives it a go. It diagnoses the problem stare decisis poses for originalism and surveys recent doctrine and scholarship on the subject. It concludes that if they wish to integrate originalism and stare decisis, originalists will have to confront the value of legal stability promoted by stare decisis more squarely. They will need to appreciate and incorporate the virtue of legal endurance—and constitutional law’s abiding traditionalism—into a theory of originalist judging.

Originalism

What I will claim is the gap within originalism depends on what Professor Gary Lawson once called the distinction between interpretation (what words mean) and adjudication (how judges should decide cases). As a theory of interpretation, originalism is the view that the text of the Constitution means what it meant to the relevant public adopting it.[1] As a theory of adjudication, originalism holds that judges should therefore decide cases by applying the text in accordance with the original public meaning.[2]

But there is no necessary connection between these theories. I can know what the words on a shopping list mean and have good reasons to buy all, some, or none of the groceries on it. Likewise, a judge can know the original public meaning of the constitutional text and have good reasons to decide a case in full, partial, or no accord with that meaning. True, there are also descriptive and normative theories of originalism’s legal authority and political legitimacy. But these, too, do not speak directly to how judges should decide cases, or to the nature of judicial excellence in constitutional adjudication. Just as one can have a theory of the meaning of shopping lists, one can also have a theory of the authoritative shopping-list maker, or of the list’s legitimacy, and yet still decide, for excellent reasons, to depart from the list when actually shopping. Some further argument is needed for judges to decide cases in accord with original meaning—some connection between a theory of constitutional meaning and a theory of constitutional judging.

Stare Decisis

Stare decisis is about adjudication, not interpretation. It is the view that judges should generally stand by a prior precedent in a new case even where they believe the precedent is wrong. Justifications for stare decisis tend to be pragmatic and provisional. Stare decisis is said to promote judicial legitimacy (the public needs confidence that judges know what they are doing, which it won’t have if judges change their minds too much) and legal predictability (the public needs to know what the law is in order to obey it, which it can’t do if the law changes too much).

Yet the fundamental justification for stare decisis is that it is a vital component of the law’s stability, and stability is a legal virtue. Stability in the law permits people to coordinate their lives and their common projects now and intergenerationally. This is not merely a matter of “reliance” or satisfying expectations, as is sometimes claimed. Stability enables the law to connect and align a people’s past, present, and future. It allows a people to root its present law to the “precedent” law and the subsequent law, in order to live more richly interconnected lives. Constitutional stability, moreover, is recognized as a virtue in the provision of life tenure for judges during good behavior (contrast the political branches), as well as in Alexander Hamilton’s insistence that the “weightie[st]” argument in life tenure’s favor is the need for a stable and constant judicial character—one “bound down by strict rules and precedents.”

Naturally, no one wants absolute stasis. But to cherish the “rule of law” is to value law that lasts and that fits what is new within what is old. Even Ronald Dworkin, who was known for his “moral reading” of the Constitution, acknowledged the fundamental importance of fit. Stare decisis fosters the law’s endurance, and consequently its durability, because it supports legal continuity as a common, human project over a particular judge’s unconstrained sense, in a single time and place, of the correct outcome. The law as the “artificial perfection of reason” is a common project achieved by generations of judges and lawyers over the span of centuries. That is true of constitutional no less than common law. Nemo nascitur artifex: no one is born a craftsman, as Coke said. The craft of law is borne of the succession of judicial ages. Indeed, stability and endurance are qualities that mark the law as a distinctively human endeavor, distinguishing it from, as Professor Anthony Kronman (channeling Burke) once put it, the evanescent, disconnected, rootless and futureless behavior of the “flies of a summer.”

Seeing the Gap

Interpretive originalism and stare decisis are in theory compatible. A judge can know that the original meaning of the First Amendment excluded a certain type of speech from constitutional protection and yet decide a case protecting that speech, aligning today’s decision with yesterday’s precedent. But adjudicative originalism and stare decisis are in tension when a precedent was decided in a way that departs from the original public meaning. The judge now has a choice: adhere either to stare decisis or to original meaning.

There is therefore a gap—at times a very large one—separating originalist interpretation and originalist adjudication. The gap is reflected in the extraordinarily frequent convergence of (1) precedent that diverges from original meaning; and (2) judges who embrace the virtues of legal stability and endurance. Where the gap exists, adjudicative originalism is disruptive of the endurance of constitutional law fostered by stare decisis. A judge deciding a case according to the original meaning and in conflict with stare decisis creates discontinuity with the more recent legal past for the sake of continuity with the originalist moment. As a result, originalism as a theory of adjudication often is destructive of the law’s endurance. This should not be surprising, since, as Professor Adrian Vermeule has observed, originalism’s political origins were conceived in a strategy to unsettle and displace what were at that point a suite of entrenched Warren and Burger Court precedents. But the gap yawns well beyond these late-20th century skirmishes. There are many areas of constitutional law where the Court has for decades, if not longer, decided cases using non-originalist methods to reach at best dubiously originalist outcomes. (Doctrinal pockets of the First, Fourth, Eighth, and Fourteenth Amendments come immediately to mind, but there are many others. Indeed, the judges who use non-originalism to decide sundry free speech controversies include some of the supposedly staunchest originalists on the Supreme Court.) The gap is a function of the great distance between originalism as an abstract interpretive project and originalism as implemented in our actual, concrete legal world.

Bridging the Gap

What should judges drawn to interpretive originalism do when facing this gap? A host of answers have been proposed, but it may not distort things too badly to say that many originalists believe that a judge confronting the gap has at least a powerful prima facie reason not to adhere to stare decisis and to decide the case in accordance with the original meaning. Some originalists go further, claiming that judges should never adhere to stare decisis. Others argue that the prima facie reason not to follow precedent in cases of divergence from the original public meaning may sometimes be overcome. For example, the case may implicate the Article III structural obligation of “inferior courts” to follow the legal rule announced by courts superior to them—what is sometimes called “vertical” stare decisis. Or the divergence between original public meaning and precedent may be one of reasoning rather than outcome or rule, permitting the judge to adhere to a result- or rule-oriented understanding of stare decisis in rendering a decision. Or a “faint-hearted” originalist may think that meeting people’s expectations or shoring up judicial credibility requires an “exception” to originalist adjudication.

The closest that some originalists come to bridging the gap is to say that stare decisis is itself part of the original meaning of the Constitution, such that originalism sometimes contemplates even “horizontal” stare decisis (the obligation of a court to affirm its own precedent even when it comes to a different view in a later case). Other originalists discern in James Madison’s contemplation a process of the “liquidation” of ambiguous textual provisions over a discrete period. Yet even here, as discussed further below, the gap remains, because to say that the Constitution sometimes recognizes stare decisis or that Madison believed some meanings must be liquidated is still to make an interpretive originalist claim. But that claim has no necessary purchase on a judge deciding a case, even a judge favorably disposed toward original public meaning. It does not guide a judge about what to do. It does not explain when the draw of legal endurance is most powerful in constitutional adjudication. The gap between interpretation and adjudication is particularly glaring where a legal doctrine is old, continuous over time, and repeatedly entrenched or concentrated in legal decisions, but nevertheless in tension with original meaning.

To bridge the gap, one would have to connect originalism’s interpretive claims to a theory of adjudication that fully esteemed and integrated the chief virtue of stare decisis, the endurance of the law, in a deeper way than begrudgingly tolerating it as an exception to originalism or a latent structural feature of the Constitution. One would need to explain just why and when stare decisis is an element of excellence in constitutional adjudication as it is today in the judicial world we have, and not merely an unfortunate, occasional, or second-best concession in a judicial world we don’t.

Before sketching one possibility for that sort of theory of adjudication, it is worth surveying some of the latest views about stare decisis and originalism coming out of the Supreme Court and the academy. If only because the Court’s recent efforts in negotiating the gap add something not yet fully appreciated by the academy.

The Court

Time was that the Supreme Court did not give much thought to the relationship of originalism and stare decisis. One of the Court’s most extensive treatments of stare decisis in Planned Parenthood v. Casey, a case best known for putatively reaffirming the “core” of Roe v. Wade, lumped together an undifferentiated mash of “prudential and pragmatic” stare decisis considerations including “workability,” “reliance,” and legal and factual evolution without so much as mentioning originalism. There was little explanation about what these factors meant, how to balance them, or when the force of prudence squeezed from this pastiche was potent enough to override what the Court actually believed to be correct. Instead, the Court chided those who felt “tested by following” it and consoled itself that at least “the thoughtful part of the Nation” would accept whatever it said. The Court has further muddied the waters with other turbid turns of phrase—for example, that stare decisis is “not an inexorable command” but that departures from it require “special justification” beyond the bare claim that a precedent was wrong. And most recently, Chief Justice Roberts has regrettably repeated many of these vacuous and ill-considered views in his decisive concurrence striking down Louisiana’s hospital-admitting privileges requirement as a condition for performing abortions, in yet another opinion about stare decisis that showed no interest in discussing its relationship to originalism and a profoundly misguided conception of its constitutional role.

But over the last couple of years, stare decisis’s position relative to originalism has attracted more attention. The Court has not yet settled on a definite approach, but several justices have begun to stake out more developed views, and these have been, on the whole, promising first steps toward addressing the problem of the gap.

In Gamble v. United States, for example, the Supreme Court reaffirmed precedents recognizing the “dual sovereignty” doctrine in holding that it was constitutional under the Fifth Amendment’s Double Jeopardy Clause to prosecute the same person on federal and state charges for the same conduct. In an opinion by Justice Alito, the Court examined evidence of the original meaning of the Double Jeopardy Clause and found it inconclusive as to dual sovereignty prosecution. The Court then pointed to two features of a precedent that render it particularly powerful for stare decisis purposes: antiquity and endurance. Gamble had to overcome “numerous ‘major decisions of this Court’ spanning 170 years,” and the evidence of original meaning he could muster was inadequate to defeat precedents so old, so continuous, and so deeply entrenched.

Justice Thomas concurred separately, arguing that when a precedent is “demonstrably erroneous” as a matter of original meaning, the Court must overrule it. Thomas therefore disagreed with the Court’s “special justification”-other-than-wrongness formulation: the Court must prefer original meaning to stare decisis, in his view, when the precedent at stake is clearly wrong. Nevertheless, Thomas argued that adherence to stare decisis is permitted (but not required) “when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law.” It is notable that even for Justice Thomas—supposedly one of the most stare-decisis-skeptical justices on the Court—stare decisis may retain a decisive role in all cases other than those involving a “demonstrably wrong” precedent. That may be a lot of cases. Justice Scalia once remarked that he was “an originalist… not a nut.” Neither is Justice Thomas.

In fact, Justice Thomas greatly illuminated and refined his position on stare decisis earlier this year. Concurring in Hernandez v. Mesa, a case declining to expand “implied private actions” or so-called “Bivens actions” (civil actions against federal officers inferred by the Court from the text of the Constitution) seeking damages claims for cross-border shootings against federal officers, Thomas argued that “stare decisis provides no veneer of respectability” for “demonstrably wrong precedents” such as Bivens. He explained: “[Bivens] ‘broke new ground.’ From the ratification of the Bill of Rights until 1971, the Court did not create ‘implied private action[s] for damages against federal officers alleged to have violated a citizen’s constitutional rights.’ Suits to recover such damages were generally brought under state tort law.” Thomas’s elaboration emphasizes the age (or, here, the novelty) and durability of a particular precedent as highly relevant criteria for the strength of stare decisis. He also highlights the longstanding customary practice for bringing a private action before 1971—the tort suit. Justice Alito’s opinion for the Court in Gamble and Justice Thomas’s concurrence in Mesa thus coalesce around the same factors relevant to stare decisis’s force: a precedent’s age, its endurance and continuity, and the relationship of the precedent to concrete practices followed “traditionally.” Taken together, this is something like a standard of adjudication for stare decisis.

The Court’s most recent discussion of stare decisis and original meaning in Ramos v. Louisiana is also clarifying, notwithstanding the decision’s fragmentation. Forty-eight out of fifty states demand unanimous juries to convict defendants of serious offenses, a requirement consistent and continuous with the common law dating, in the Court’s view, from the 14th century and enduring well after the ratification of the Sixth Amendment. Louisiana and Oregon were once part of this consensus but adopted a different rule in the late 19th and early 20th century, respectively, that a vote of 10-2 was sufficient for conviction. In 1972, a plurality of the Court upheld this practice on functionalist grounds in Apodaca v. Oregon. In an opinion by Justice Gorsuch, the Court changed view in Ramos, discarding Apodaca and offering this in a part of the opinion commanding a plurality: “How does the State deal with the fact this Court has said 13 times over 120 years that the Sixth Amendment does require unanimity?… And what about the prior 400 years of English and American cases requiring unanimity[?]… The deeper problem is that [Apodaca] subjected the ancient guarantee of a unanimous jury verdict to its own functionalist assessment.”[3]

When the Ramos majority criticized the “quality” of Apodaca’s “reasoning” and its “consistency with related decisions,” what it really meant was that Apodaca lacked historical warrant, deep jurisprudential roots, and enduring continuity with the Court’s other decisions. Like the deviant state practices that it upheld, Apodaca was “unmoored,” “an outlier,” “a universe of one,” and these qualities made its stare decisis force especially weak. As in Gamble, the justices in Ramos emphasized a precedent’s age, endurance, and continuity, together with its consistency with broadly accepted practices and understandings, all of which together informed the precedent’s stability-enhancing qualities as fostered by stare decisis. In the words of an 1860 New Hampshire Supreme Court opinion quoted at length by Justice Thomas in his Ramos concurrence: “The terms ‘jury,’ and ‘trial by jury,’ are, and for ages have been well known in the language of the law. They were used at the adoption of the constitution, and always, it is believed, before that time, and almost always since, in a single sense.”

The Academy

By contrast with the Court, legal scholars have achieved a good deal less consensus (as is their wont!) about how to integrate original public meaning and stare decisis in constitutional adjudication. This essay can only cherry-pick a few examples from the wealth of originalist scholarship on this question. Hopefully, it will be sufficient at least to show how vast the range of views has become.

At one extreme are those originalists who think that stare decisis and originalism are entirely, or almost entirely, incompatible, at least as to the force of horizontal stare decisis. So, for example, Professor Lawson says that when confronted by the gap between originalist interpretation and originalist adjudication, the Supreme Court should “mostly never” prefer precedent to “direct, unmediated examination the Constitution.” Likewise, Professor Michael Paulsen argues that stare decisis exerts an “intrinsically corrupting influence” on constitutional adjudication and that it and original meaning are “completely irreconcilable.” For these originalist scholars, there is no gap. What matters is a judge’s fidelity to original meaning. Stare decisis and the legal stability that it fosters have seemingly no adjudicative value at all. Whatever may be said for it (and historical warrant is not one of those things, since stare decisis seems to have been uncontroversial at the founding, and it would be highly peculiar to believe that constitutional law was uniquely non-law-like in this way), this is a position that stands virtually no chance of being adopted by any judge today because it counts legal endurance in constitutional law for nothing.

A more moderate, but still comparatively stare decisis-skeptical, position is that the force of stare decisis only extends as far as the narrowest reasoning necessary to resolve the case, but no further. So, for example, Professor Randy Barnett argues that even inferior federal courts need not adhere in a new case to what the Supreme Court has said is the holding of a prior case if it was not narrowly necessary for resolving that case. Instead, inferior federal courts “must be guided by an effort to achieve originalist outcomes,” though they may join opinions that use non-originalist methods to reach originalist outcomes. As for horizontal stare decisis, Barnett claims that a judge is permitted (but never required) to follow stare decisis when the meaning of the text is underdetermined—in what he and some like-minded originalists call “the construction zone”—giving preference to precedents that attempted in good faith (even if mistakenly) to apply originalist methods. Still, Barnett interprets the scope of stare decisis extremely narrowly, thus diminishing the degree of legal stability that stare decisis can offer constitutional law even in those situations where he thinks it is permissible.

A third group of originalists—call them “compatibilists”—attempts to ground stare decisis within originalism.[4] This group of originalists, to my mind, comes closest to negotiating the gap, even though ultimately the gap remains. Professors John McGinnis and Michael Rappaport, for example, argue that “the judicial power” in Article III comprehends at least “a minimal degree of precedent” that would support adhering to stare decisis where there is “a string of precedents over a substantial period.” Their argument is rather similar to what Justices Alito and Thomas emphasized in the age and endurance of a precedent. The judicial power, on McGinnis and Rappaport’s view, includes “certain traditional aspects of the judicial office” that includes a “very narrow” conception of stare decisis. Furthermore, they argue that stare decisis is part of the “federal common law” that continues to exist unless affirmatively displaced by the superior law of the Constitution. In the end, what they take to be the limited compatibility between originalism and stare decisis permits judges to adhere to stare decisis in concomitantly limited circumstances that include “avoiding enormous costs” and “when a precedent is entrenched.” These last adjudicative prescriptions are helpful but, as the authors say, they do not represent “a comprehensive doctrine of precedent” to guide judges confronting the gap.

One of the more recent and interesting compatibilist efforts is Professor William Baude’s theory of the “liquidation” of textual meaning. Drawing from Madison’s comment in Federalist 37 that “all written laws,” including the Constitution, “are considered as more or less obscure and equivocal, until their meaning be liquidated… by a series of particular…  adjudications,” Baude argues that reasoned elaboration of indeterminate constitutional text by any government actor, including the courts, over a discrete period of time can give meaning to that text. One of the keys in liquidation as expounded by Baude is that its constituents must be deliberated and re-ratified as reasonable textual interpretations; liquidation reflects a “deliberate course of practice with the public sanction” including for the liquidation of meaning in judicial precedent. So, for example, the bare fact of a long and enduring set of precedents is insufficient raw material for liquidation, even if it might be for stare decisis, if that set were not re-rationalized by the newly reviewing court.

The Gap Revisited

These are only a few efforts the scholarly community has made to address the gap. But my view is that they cannot ultimately negotiate it because they are generally refinements of interpretive, not adjudicative, originalism. Even if “the judicial power” comprehends a “minimal” notion of stare decisis, or if Madisonian liquidation is a permissible strategy to learn the meaning of ambiguous text, the problem of translating these insights about original meaning into a theory of constitutional adjudication that integrates stare decisis remains.

Again: why is stare decisis valuable in constitutional judging, and when is it especially so? These are the questions that originalists must ask. Some scholars have begun to do so. Professor Randy Kozel, for example, argues that stare decisis’s normative foundations in constitutional judging are rooted in the legal values of stability and “impersonality,” as contradistinguished from the changeability and passion of politics. As he puts it: “Calendar pages turn and political winds shift, but the law is still the law.” Impersonality is especially necessary given the welter of interpretive and methodological pluralism in constitutional law. So long as that pluralism exists (and that is likely to be a long time), Kozel contends that stare decisis will be normatively desirable as a constraint on judges.

Kozel is asking the right questions, and his normative account of stare decisis goes some distance to explaining its importance in constitutional law. An even thicker account would recognize not merely the fact of the problem of pluralism mitigated by the constraints of stare decisis, but that the central virtue of stare decisis is in promoting the law’s endurance. Such an account would internalize Kozel’s distinction between law and politics. It would pick up on the clues dropped by the justices in cases like Gamble, Mesa, and Ramos that stare decisis is far more powerful when the Court confronts ancient, long-standing, and continuous precedents than it is when the precedent at issue is “unmoored” from the adjudicative firmament. It would prize stare decisis especially, as Justice Thomas recognized in his Mesa concurrence, when the historical sweep of judicial precedents is connected—moored, as it were—to political and cultural practices of similar age and endurance. It would acknowledge that these virtues of stare decisis may be just as powerful whether the rationales supporting them are “deliberated” (in the liquidated sense) or not, whether re-ratified in a way that seems compelling to present judicial and academic sensibilities and investments or not. The sheer endurance of any precedent is intimately connected to its lawlike properties, though common law, constitutional, and statutory precedents may have different time horizons for these purposes.

Stare decisis is not about following the most recent case. It is not, as Chief Justice Roberts wrongly claimed in June Medical, about simply “treat[ing] like cases alike” and voting for something today that one thought was wrong four years ago. It is instead, as Justice Thomas rightly countered in the same case, about “fidelity…which demonstrates ‘reverence to antiquity.’” It is about picking up the legal thread connecting a long and lasting line of cases. Where the Court confronts precedents of great age, endurance, continuity, and connection to similarly ancient and longstanding common, popular practices, the virtues of legal stability fostered by stare decisis are especially potent. Such precedents are also, as it happens, likely (though not certain) to be consistent with, even if not mandated by, the Constitution’s original public meaning. It stands to reason that stare decisis will exert a particularly strong gravitational pull on constitutional adjudicators in those circumstances. Indeed, for the Court, it already has. No “demonstrably erroneous” precedent—let alone an indelibly evil precedent—should ever survive, irrespective of its lineage. But for the considerable quantity of constitutional precedent that does not fall into this category, and with time, judges might use the deep-rooted traditions of law, politics, and culture, to integrate originalism and stare decisis.

[1] I set to the side the dispute between original meaning and original intentions as contenders for the correct interpretive theory of originalism, since today most originalists (though not all) favor original public meaning. The history of the origins of originalism is summarized handily in Lawrence B. Solum, “What is Originalism? The Evolution of Contemporary Originalist Theory.”

[2] Technically, this is a normative theory of originalist adjudication. One might have a descriptive theory of originalist adjudication—one that documents the extent to which judges actually decide cases in originalist fashion.

[3] There was a question in Ramos about whether Apodaca even qualified for stare decisis treatment inasmuch as its functionalist reasoning was only joined by four justices. I set these issues to the side, however, taking from Ramos what it offered about stare decisis’s scope in cases where it does qualify.

[4] Other compatibilists include Lawrence B. Solum, “The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future Of Unenumerated Rights,” 9 U. Pa. J. Const. L. 155 (2006) and Lee J. Strang, “An Originalist Theory of Precedent: Originalism, Nonoriginalist Precedent, and the Common Good,” 36 N.M. L. Rev. 419 (2006).

Marc O. DeGirolami is the Cary Fields Professor of Law and co-directs the Center for Law and Religion at St. John’s Law. This article published originally at Law & Liberty on September 1, 2020.