Amy Coney Barrett and Originalism

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By Professor Marc O. DeGirolami

Judge Amy Coney Barrett’s view on originalism and stare decisis is now a subject of public discussion. Some have made wildly unsupported claims that Judge Barrett has “argued for a fearless originalism” that “makes Antonin Scalia look moderate” and that would discard stare decisis altogether. But to have an intelligent opinion about Judge Barrett’s views, one needs to know what she has written. This short essay is an attempt to lay out in brief what Judge Barrett has written about the relationship between originalism and stare decisis.

A few terms. Originalism is the theory of constitutional adjudication holding that the original public meaning of the Constitution (or the original intentions of the drafters) should control its meaning today. Stare decisis is the principle that as a general matter, judges should stand by a prior precedent in a new case even when they disagree with that precedent. Stare decisis is said to promote various virtues including predictability, judicial legitimacy, and (most important in my own view), legal stability.

The problem is that there is frequent divergence between original public meaning and present constitutional doctrine on any given issue. If a judge is at all committed to originalism, she must ask how she will reconcile that commitment with the gravitational pull of stare decisis. For virtually every judge inclined toward originalism (or, for that matter, any other interpretive approach), this will be a question of degree. No judge will favor absolute legal stasis, just as none will think that originalism counts for nothing. Judges must reflect on just how powerful the pull of stare decisis ought to be when it is in tension with their interpretive commitments. Will it be comparatively “strong” or “weak”?

Judge Barrett’s principal writing on this problem can be found in Precedent and Jurisprudential Disagreement and Originalism and Stare Decisis, although she has discussed these matters in other places as well. Her view can be summarized as originalist but also committed to the presumption of stare decisis force for existing precedent. She has elaborated a comparatively “weak” or “soft” presumption in favor of stare decisis in constitutional cases, but it is important to be clear about just what that means.

For Judge Barrett, the fact of methodological pluralism about fundamental issues in constitutional methodology (for example, in the disagreements between originalism and varieties of non-originalism) makes a comparatively soft stare decisis presumption attractive. This pluralism has implications for how judges view basic doctrinal error, because such error is likely to concern foundational methodological differences and deep jurisprudential commitments. In such situations, Judge Barrett writes, “stare decisis seems less about error correction than about mediating intense jurisprudential disagreement.”

As to precedents where a judge has a deep disagreement about method, it is not realistic or desirable, Judge Barrett says, to expect the judge to abandon her commitments simply for the sake of preserving those precedents. That would be asking the judge to betray her core judicial philosophy, something that would do no favors to judicial legitimacy, perceived or actual. Nevertheless, “the preference for continuity disciplines jurisprudential disagreement,” requiring from judges who would abandon stare decisis “both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal.” If these very strong reasons and explanations do not exist, then “the preference for continuity trumps.” New coalitions of judges (and at the Supreme Court, it is groups of judges that count) who argue for new interpretations are put at “an institutional disadvantage” by stare decisis, but they are not categorically disabled by it.

Judge Barrett’s “soft stare decisis” approach, in sum, accommodates the fact of methodological pluralism and deep substantive disagreement with the need for legal stability. The presumption favors existing doctrinal arrangements but permits challenges to them. To say that it is “soft,” therefore, is not at all to say that it encourages “constant upheaval” or wild unpredictability. To the contrary: Under a soft presumption of stare decisis force, “[t]he Court follows precedent far more often than it reverses precedent.”

This view is very much in line with the Court’s current approach to the force of stare decisis. And it flows not so much from Judge Barrett’s originalism, but instead from her view that stare decisis poses a problem for all theories of constitutional interpretation. She is “soft” on stare decisis not because she is an originalist, but because people disagree in good faith about how to interpret the Constitution.

Judge Barrett also notes that there are mechanisms of the American constitutional system other than stare decisis that serve to protect the law’s stability. That is, other legal mechanisms take controversial questions off the table well before any judge needs to think about the force of stare decisis. These include the obligation of inferior judges to follow the precedents of superior courts; the prohibition against so-called “advisory opinions”—opinions disconnected from a concrete case or controversy; stringent standards for accepting review of any given legal issue; the narrow framing litigants are likely to give to any legal question presented to the Court; the necessity to garner the approval of multiple members of the Court in order to hear as well as decide any given matter; and the continuity and endurance regularly fostered by life-tenure appointment.

All of these factors, Judge Barrett has argued, are the truly stabilizing factors for precedent—especially what some scholars have called “super-precedents,” cases that no justice would overrule notwithstanding disagreement with them. Judge Barrett disputes neither the phenomenon of super-precedent nor the imperative to adhere to it. Instead, she argues that the mechanisms for stabilizing these precedents do not principally implicate stare decisis. “The force of so-called superprecedents,” she writes, “does not derive from any decision by the Court about the degree of deference they warrant.” Rather, they are stabilized by the very fact that litigants do not challenge them. Courts therefore have no occasion to question, let alone overrule, them. No one today will challenge the constitutionality of paper money, or the validity of judicial review, or the requirement of racial integration in public schools. Anyone who did would be disappointed long before reaching the Supreme Court. But as Judge Barrett puts it, “[w]ith no question on the table, there is no opportunity for the real constraint of stare decisis to kick in.” This does not mean that if the super-precedent comes to enjoy less widespread public support, a judge should for that reason be open to overruling it. It is rather that the terms of stability enjoyed by super-precedents depend upon factors other than the stare decisis weight assigned to them by justices.

It is imprudent and generally silly to attempt to predict how a judge’s scholarly writing will influence her decisions. As Patrick Deneen puts it, nobody can foretell how Judge Barrett will judge any given case. Nevertheless, since Judge Barrett has written carefully about matters that implicate any judge’s decision-making, she deserves to have that writing explained and understood.

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 appeared originally at First Things on October 12, 2020.