Opinion: Daily Journal

Scholar ponders proper role of precedent for an originalist justice

Screen shot from C-SPAN.org
Screen shot from C-SPAN.org

The debate over Judge Amy Coney Barrett’s nomination to the U.S. Supreme Court has revived interest in important constitutional questions: How much deference should a justice give to court precedent? What if that justice is committed to the theory of originalism? Can an originalist reconcile deference to precedent with her judicial philosophy?

Beyond the political gamesmanship of last week’s Senate confirmation hearings for Barrett, these questions intrigue legal scholars and theorists. A high-profile constitutional expert shared his thoughts recently with an audience in North Carolina.

“To begin with, it’s important to observe that the Supreme Court has never treated its previous decisions as binding — in the same sense that lower courts are bound. Never.”

Georgetown University constitutional law professor Randy Barnett offered that declaration. It was part of his online presentation Oct. 9 for the Duke law school’s Federalist Society chapter. Barnett directs the Georgetown Center for the Constitution and attracted national attention in 2012 for his work fighting the Affordable Care Act at the nation’s highest court.

“Of course, the court does periodically invoke the doctrine of stare decisis in attempts to explain when prior decisions should be followed or not,” Barnett added, citing the legal term for deferring to court precedent. “But in practice it’s fair to say that, quite unlike the inferior courts, the Supreme Court asserts the power to overrule its own previous decisions.”

This is true “even if the precedent is longstanding and even if it has been reaffirmed on many occasions,” Barnett said.

“If you think about it, that has to be the case,” he continued. “Under our system, only a constitutional amendment can reverse a ruling of the Supreme Court. So we need the Supreme Court to reverse its own rulings when those rulings are later thought to be mistaken.”

Barnett labels the Supreme Court’s willingness to reconsider precedent “inevitable.”

“Now for some justices Roe v. Wade, or really Planned Parenthood v. Casey, is currently and will always be in play and subject to reversal,” he said, naming the Supreme Court’s two major rulings favoring abortion rights. Other justices will target the Citizens United campaign finance ruling, the D.C. v. Heller gun-rights case, “and a host of other Rehnquist and Roberts court decisions.”

Modern-day originalism itself grew out of a reaction to high court rulings from the 1930s through 1970s. Justices issuing those rulings engaged in “wholesale rejection of precedents that stood in the way of their agenda,” Barnett said.

“When the justices really want to change direction, stare decisis poses no real obstacle to them doing so,” Barnett added. “If they want to, they can do it. If there’s a will, there’s a way. … It has always been the reality at the Supreme Court level.”

This history leads Barnett to one clear conclusion: An originalist justice, like all others, always has the “option of voting inconsistently with previous … decisions of the court.”

Originalist justices could show some deference to prior court decisions. That would make sense, in Barnett’s view, in a limited number of cases. “Supreme Court justices should give stare decisis weight to previous opinions of the court that a justice is satisfied utilized originalist reasoning in good faith.”

In other words, a precedent written by an originalist deserves some respect. “Originalist reasoning is difficult and time-consuming,” Barnett explained. “None of us can be confident of the conclusions of originalist analysis until it is subjected to genuine peer review by other originalist scholars holding different views.”

Rigorous analysis takes time. “Once the court has reached a decision based on peer-reviewed originalist scholarship, there is a very good, prudential reason for originalist justices to defer to that decision unless and until it is called into question by persuasive, competing originalist scholarship,” Barnett said.

Concern about originalism tends to focus on the prospect that originalist judges will upend large swaths of current constitutional law. Barnett suggests a strategy that could help alleviate that concern.

“Follow the holdings of previous cases while explaining in majority or concurring opinions why these results are consistent with original meaning,” he said. “The more this is done, the less threatening originalism becomes to nonoriginalists.”

As originalist justices choose when to defer to precedent and when to challenge it, Barnett outlines two goals.

First, seek originalist outcomes. That will mean supporting some court opinions that reach the proper outcome through other means. For example, the 2010 McDonald v. Chicago case upheld an individual’s right to “keep and bear arms.” The leading court opinion focused on the history of gun rights, rather than an interpretation of the Constitution’s original meaning. Yet that opinion was worth supporting.

“From an originalist standpoint, that is much better than the stance taken by the four progressive dissenters, who would have denied an individual right to keep and bear arms altogether,” Barnett said.

The second goal involves pursuit of political and ideological neutrality. “For the originalist project to succeed, originalism must have wide appeal,” Barnett explained. “It is especially important that originalist justices and judges be willing to reach originalist outcomes even — and perhaps especially — in cases where the result is one that would be favored by liberals or progressives and opposed by conservatives or libertarians.”

Relying on originalism only when it produces politically favorable outcomes would “sabotage” the originalist project. “Progressives are deeply suspicious of originalism,” Barnett said. “Overcoming that suspicion is a large task. But it is difficult to imagine that the perception that originalism is simply a cover for right-wing judicial ideology can be overcome if originalists approach stare decisis in anything other than an ideologically and politically neutral manner.”

The originalist’s ultimate goal remains the same: consistency with the written Constitution. “Justices of the Supreme Court should be striving to restore the meaning of the Constitution — the whole Constitution,” Barnett said. “The doctrine of stare decisis is not a justification for their failure to do so. It is merely an excuse.”

Barnett offers important goals to consider as the U.S. Supreme Court prepares to welcome another originalist.

Mitch Kokai is senior political analyst for the John Locke Foundation.