The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.