The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Amy Coney Barrett Is No Extremist on Stare Decisis


At the New York Times, I have a new piece about Professor Amy Coney Barrett's writings on precedent and stare decisis. This was a significant component of her research agenda as a scholar, and it has come under new scrutiny now that she might be able to put some of her ideas into practice as a justice on the U.S. Supreme Court.

Although critics have decried her as an extremist on stare decisis, I am more impressed by the extent to which her scholarship was designed to push originalists toward a more moderate and more mainstream position on the question of the authority of erroneous precedents. She may not preserve your favorite precedents as a justice, but that does not mean that she is a radical in regards to stare decisis. For better or for worse, she is no Clarence Thomas on the virtues of casting misguided precedents aside.

From the piece:

Justice Scalia was sometimes criticized as unprincipled in his approach to stare decisis, but Judge Barrett has argued that a principled defense can be built for Justice Scalia's position, and in doing so she has argued that a committed originalist can reasonably adopt a mainstream approach to stare decisis on constitutional issues.

Even an originalist judge, she believes, should frequently defer to what might be flawed precedents. That is true for what are sometimes called "superprecedents" like the unconstitutionality of racial segregation and the constitutionality of paper money, but it is also true for many more ordinary precedents that might have been badly reasoned but that are now broadly accepted.

You can read the whole thing here.