Two Questions for Judge Barrett About Stare Decisis

In a constitutional case, should a justice ever stand by a clearly erroneous precedent?

|The Volokh Conspiracy |

Judge Barrett, in a 2013 Texas Law Review article defending what you call the Supreme Court's "weak presumption of stare decisis in constitutional cases," you wrote the following:

Justifying an initial opinion requires reason giving, particularly if the majority is challenged by a dissent. Justifying a decision to overrule precedent, however, requires both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal. The need to take account of reliance interests forces a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps. Stare decisis protects reliance interests by putting newly ascendant coalitions at an institutional disadvantage. It doesn't prohibit them from rejecting a predecessor majority's methodological approach in favor of their own, but it makes it more difficult for them to do so.

(pp. 1722-23)

At first reading, your views seem well within the mainstream of American legal thought.  An erroneous decision should neither be overruled simply because it is wrong nor should it be reaffirmed simply because there has been some institutional investment in it or individual reliance on it. Every justice, with the possible exception of Clarence Thomas, accepts something like that statement.

But Judge Barrett, your approach to stare decisis seems more subtle and possibly adds a wrinkle.  Your approach implies a sliding scale in which a justice weighs the degree of certainty that the earlier decision was actually wrong against the strength of the need for continuity. As you wrote: "If she [the justice] is not sure enough, the preference for continuity trumps." (emphasis added). Also, you write: "I tend to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it." (p. 1728) (emphasis added)

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. Madison, Brown 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?

Second, you noted in the same Texas Law Review article that "'the more determinate one considers the underlying rules of decision in a particular area, the more likely one may be to conclude that a past decision in that area is 'demonstrably erroneous."'" (quoting Caleb Nelson) You added: "It makes sense that one committed to a textualist theory would more often find precedent in conflict with her interpretation of the Constitution than would one who takes a more flexible, all-things-considered approach." (p. 1724)

Is it fair to say, Judge Barrett, that your own textualist and originalist jurisprudential commitments (like Justice Scalia's) more often yield results that you regard as determinate, and would thus make it more likely that you would find some precedents not just wrong, but demonstrably and clearly wrong?

If the answer to both of my questions is "yes," I wonder if you've put a fair number of controversial precedents into constitutional pincers, making it both more likely that you will find them to be clearly wrong and more likely to let nothing stand in the way of overruling them.


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  1. This post needs to be better formatted.

    1. Several times says “you …” and “your” with no indication of who it was written to

      1. Well never mind. Written to Judge Barrett. Confused too easily by the poor formatting and grammar. That’s my story and I’m agonna stick with it.

    2. Or at least not randomly formatted.

    3. Seems it was edited after posting. Much more readable.

  2. Stare decisis gives the Michigan militia that attempted to kidnap the governor a very good 2A defense in that the unorganized militia is necessary to the security of a free state. So just as the Sons of Liberty were a very important non state sanctioned unorganized militia so are the patriots in the Michigan militia.

    1. Technically, the “Michigan militia” is the name of a particular (And large!) militia in Michigan, which so far as I can tell refused to have anything to do with the plot.

      The left-wing militia that actually hatched this plot was call the “Wolverine” militia, IIRC.

      Oh, and they didn’t attempt to kidnap the governor. Didn’t get as far as an attempt. They just proposed doing so, were fed enough rope to hang themselves, and then rounded up.

      1. Regardless, the group is part of the “unorganized militia” and pursuant Heller/McDonald they are afforded those sweet sweet 2A protections! So the unorganized militia is necessary to the security of a free state and so their RKBA shall not be infringed. Their actions are consistent those of the patriots the Sons of Liberty took against the tax collector Andrew Oliver. So “bearing arms“ protects actions like burning officials in effigy and ransacking their homes and offices.

        1. Ransacking of homes and offices which would be illegal unarmed would still be illegal while (otherwise) legally armed. As for burning officials in effigy, that’s the 1A, not the 2A. You don’t like that one either?

          1. You are limiting the 2A waaaaaaay too much. The prefatory clause clearly states the unorganized militia is necessary to the security of a free state. So the actions of the unorganized militia are not limited to actions that involve arms. So if the unorganized militia is burning an official in effigy that act is protected by the 2A because the 1A right is limited to places it is legal to start a fire…the 2A doesn’t have that limitation.

            1. Errr…

              Yiu forget the words “well regulated.”

              “Regulated” means “organized.” As in by the state, not private indiciduals.

              That’s the only kind of militia that 2A covers.

              Text can be a bummer, but it is what it is.

              1. Can’t find the part in Webster where regulated means state controlled.

              2. Not according to Heller.

                1. Yeah, you seem to have a serious comprehension problem when it comes to Heller.

    2. Is a citizen arrest legal in Michigan? See MCL 764.16.

      1. Depends, is the citizen acting as part of the “unorganized militia”?? It’s very similar to “religion” or the “press” with respect to the 1A. So I can’t take peyote merely to get stoned out of my gourd…but I can take it to talk to Thor who is a very important deity in my religion.

        1. Ask this elected sheriff guy…I promise you his comments were unexpected. The whole thing is a funny joke to me.

    3. I think there is an adjective before “militia.”

  3. I hope [soon to be Justice] Barett would answer that somewhere in her answer, that a “super-precedent” sounds like a laundry detergent.

    And that’s not really a question. That a hypothetical with as much lead in as a Star Wars movie crawl that is in the neighborhood of a question, and wears the clothes of a “when did you stop beating your wife” question.

    1. I disagree. I think it’s a good question.

      It might be motivated by a desire to seque into a wife beating follow up, but I think it would be profitable to ask any nominee about stare decisis.

      This draft question aimed at a textualist seems fair enough. if something similar was aimed at a living constitutionalist one might tweak it to seek an explanation of how much living a constitution may be allowed to do, while stare-ing prior decisises.

      1. The very end is a leading, but somewhat decent question for a judge nominated by the opposing party, while everything that precedes it, not so much.

  4. The likelihood that any senator could even understand, much less formulate, that question is close to zero.

    1. This is classic (law) professorial intellectual masturbation at it’s best (worst?). There is a place for this sort of thinking, but as for questions to potential justices, probably not.

      1. If the premise for a question takes up 3 paragraphs, its a speech, not a question.

        1. That structure is entirely characteristic of Senate “questions,” which is one reason Senate hearings are so uninformative, unless you are seeking to hear senators explain how dedicated they are to preventing the unspeakable evils which the other party seeks to accomplish.

          1. Today’s confirmation hearings consisted of nothing but election campaign speeches by both parties…except for the nominee who humble-bragged about her family and background. Oh, and some professor said the nominee was awesome.

            1. It appears she and her children were masked today, indicating (1) someone must have whispered some adult supervision and (2) she has stopped being a lousy mother, at least for public appearance purposes.

              1. You do realize she’s already had it, this summer, and wearing the mask is just theatrics?

                1. You do realise you can get Covid more than once?

                  1. No, I actually realize that you basically can’t unless you’re immune compromised, or very, very unlucky. The odds against getting it twice are about as low as her tripping and hitting her head walking up to testify, and she’s not wearing a helmet.

                    1. Yeah, there’s some nonsense out there about coronavirus antibodies in general only lasting a few months.

                      From what I can tell, that’s not a thing.

                2. “You do realize she’s already had it, this summer, and wearing the mask is just theatrics?”

                  First, her children also were maskless, you bigoted rube.

                  Second, reinfection has been documented, so she could have been contagious, you right-wing dullard.

                  Third, reinfection has been documented, so she could have become infected, you inconsequential culture war casualty.

                  Fourth, she was flouting District of Columbia rules with respect to masks, in the presence of her children, you obsolete clinger.

                  Fifth, ‘masks are just theatrics’ is the statement of a lousy person whose replacement can’t arrive fast enough.

                  Carry on, you anti-social, no-count wingnut.

                  1. Tripping and hitting your head is also documented, but they didn’t force her to wear a helmet.

  5. Seems like her position was quite reasonable. A vague intuition that a precedent is wrong shouldn’t be enough to vote to overrule it, absolute moral certainty should be enough reason, in between you have to balance your degree of certainty against reliance interests.

    1. I’ve always had an issue with this “clearly erroneous” standard because it requires you to say that your judicial philosophy isn’t just preferable (for either normative, descriptive, philosophical, or any other reason) but constitutionally required. Or to at least say that the philosophy used on the other side is constitutionally infirm. I am an originialist, but there is nothing in the constitution that mandates that (despite arguments to structure requiring it) and early debates over how to interpret several provisions relied on several different theories themselves. So giving any judicial philosophy the weight of certitude that would be required to find a decision clearly erroneous doesn’t strike me as a reasonable position.

    2. absolute moral certainty

      You sound like Kennedy.

      That’s not a complement.

      1. The old MTV VJ? Still easy on the eyes.

  6. It seems to me the purpose of these questions is to suggest that (1) textualists are always going to favor overturning precedent if they’re certain the prior case was wrong and (2) textualist judges are generally more apt to be certain in their views concerning whether prior cases were wrongly decided. Ergo, textualist judges are a greater danger to stare decisis.

    But unless you view stare decisis as an absolute command, I don’t think the goal ought to be merely seating justices who will adhere to stare decisis as frequently as possible. Rather, what we should want are justices best able to correct bad precedent and leave correctly decided precedent alone. When a textualist evaluates whether to overturn precedent, she is going to evaluate the prior case for fidelity to the text, and, if necessary, original understanding, of the constitutional provision in question. This approach seems to me the best way to approach error correction.

    By contrast, consider the arguments that have been made over the years by dissenting justices opposed to capital punishment. Decreasing support for capitalist punishment in other countries, lack of support for capital punishment by various professional and health organizations, and declining use of capital punishment by state governments have regularly been offered as grounds to overturn precedent and ban capital punishment. None of these speak to whether the prior cases were wrongly decided – they are essentially arguments that times change and the constitution should change too. This is a dangerous impulse because it does not require an explanation of why the prior decision was wrong, which, Judge Barrett notes in the 2013 article, is an important check on ill-advised deviation from stare decisis.

    I’d rather have marginally higher rates of overturning precedent based on textualist inquiry than a smaller number of precedents being overturned because the majority justices wish to make improvements to the constitution. The latter is more damaging to the rule of law and the institutional reputation of the courts.

  7. I read once the the United States was the only country to apply Stare Decisis to constitution interpretation.

  8. Judge Barrett, how much wood would a woodchuck chuck if a wood chuck could chuck wood?

    1. A wood chuck would chuck as much wood as it could, if a wood chuck could chuck wood. Obviously.

  9. Dredd Scott, Separate but Equal

    Just a few examples of bad decisions that were reversed. Roe v Wade is a legal joke. It falls in the same category

    1. I’d say that Roe is in the same category as Dredd Scot, but not “separate but equal”; In the Dredd Scot case, Taney basically falsified history and pulled blacks not being able to be citizens out of his ass, though historically you could demonstrate that they HAD sometimes been treated as citizens. This is similar to the Court inventing a right to abortion with no textual basis, and most states having made it a crime.

      But “separate but equal” might have made sense, in an alternate universe where anybody who was insisting on “separate” actually was willing to see “equal”, since the 14th amendment actually does say “equal”, not “together”.

      Rejecting separate but equal was just a late recognition that, in practice, it never was going to be equal.

    2. If you take the time to read the opinion you will see that Roe vs Wade is a well reasoned and well written opinion. It weighs a number of different issues include a woman right to privacy and control against the state’s right to regulate the procedure. It was decided by a wide majority (7 to 2). You may not like the decision but there is little to say it was wrongly decided.

      1. I’m sure it’s well written, in literary terms. Properly punctuated, good grammar, and so forth. It’s just not well grounded in the actual Constitution.

        I found the dissents persuasive: A right to privacy simply isn’t applicable to an act that is not private, but involves employing a medical professional engaged in commerce. Indeed, if we were to follow the contrary reasoning, an extraordinary number of laws would have to fall. I might delight in their falling. But I’ve never seen the Court follow up this reasoning outside the area of abortion and sex.

        So we’re not really talking about a right to privacy. We’re talking about a specific right to abortion, and the laws the Court overthrew had been around for over a century in many cases, predating the 14th amendment.

        No, I’m not impressed with the decision, even if the quality of the writing is good. And even less impressed with Doe v Bolton.

  10. I haven’t watched the hearings.

    How is the superstitious, bigoted handmaid doing?

    1. I’ll catch you up.
      “I … can’t comment … on precedent.”

      1. Did anyone ask whether she enjoyed The Handmaid’s Tale?

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