Originalism, precedent, and judicial restraint.

• Author: Rosen, Jeffrey
• Position: Twenty-Ninth Annual Federalist Society National Student Symposium: Originalism

There are, in theory, ways of reconciling originalism and respect for precedent. But, in practice, these approaches have not been consistently adopted by the Roberts Court. Justice Antonin Scalia has described Chief Justice Roberts's attitude toward precedent as "fanx judicial restraint"--a kind of "judicial obfuscation" that should discomfit originalists and nonoriginalists alike. (1) And from the other side of the Court, Justice Stephen Breyer has been similarly critical of the Chief Justice's approach to precedent. (2) If the Chief Justice is to succeed in his admirable goal of persuading his colleagues to converge around narrow, unanimous opinions that the country can accept as legitimate, (3) he will need to characterize precedents in terms that his colleagues regardless of ideology can accept as neutral and transparent.

Courts do not overturn constitutional precedents very often. The Marshall Court did not overturn a single constitutional precedent. (4) The Taney Court overturned only one. (5) The Hughes Court, during the New Deal era, overturned twenty-five. (6) The Warren Court, which is often viewed as a bogeyman in its attitude toward precedents, overturned thirty-two--the most up to that time. (7) But that was nothing compared to the record of the Burger Court, which overruled no fewer than seventy-six precedents. (8) The Rehnquist Court overturned thirty-nine precedents, a handful more than the Warren Court. (9)

What is the Roberts Court's attitude toward precedent? There are two unapologetic originalists on the Roberts Court: Justices Scalia and Thomas. Their approaches to precedents will not gladden the hearts of all members of the Federalist Society. Some originalists, like Professors Gary Lawson and Randy Barnett, argue that it is unconstitutional for the Supreme Court to follow a precedent that deviates from the original meaning of the constitutional text, period. (10) That is a principled position on steroids. But even Justice Scalia does not embrace this position. He calls himself a fainthearted originalist because he would sometimes allow judicial precedent or societal custom to trump the original meaning of the Constitution. (11) Justice Scalia distinguishes himself from Justice Thomas in this regard. According to Justice Scalia, Justice Thomas would overrule any precedent that is inconsistent with the Constitution's original meaning but he himself would not. (12) Chief Justice Roberts rejects both positions. In his confirmation hearings, the Chief Justice said he cares more about precedent than original meaning, describing himself not as an originalist but as a bottom-up rather than a top-down judge. (13) He suggested that bottom-up judging includes respect for stare decisis, and he famously likened himself to an umpire. (14)

I am especially interested in Chief Justice Roberts's vision of precedent, as I had the fortunate opportunity to interview him at the end of his first term. (15) During the interview, Chief Justice Roberts expressed frustration that his colleagues were acting more like law professors than members of a collegial court. He said that serving on the Court should not be an academic exercise, and that, in this polarized age, it was important for the country that the Court converge around narrow, unanimous opinions. (16) He also said that he would try to persuade his colleagues to embrace narrow, minimalist opinions rather than five-to-four, ideologically polarized opinions. (17)

I was very impressed with Chief Justice Roberts and his vision of a more collegial Court. I also was distressed to see that in the Term following our discussion, the 2007 Term, thirty-three percent of the Court's decisions were five-to-four (18)--the highest percentage in ten years. Some of these decisions generated criticism from both liberal and conservative Justices for mischaracterizing contrary precedents rather than admitting that the Court was effectively overruling them. For example, in FEC v. Wisconsin Right to Life, a five-to-four majority opinion authored by Chief Justice Roberts struck down a provision of the McCain-Feingold law that limited expenditures by corporations. (19) The Court had upheld the provision four years earlier in McConnell v. FEC. (20) The majority opinion refused to overrule McConnell openly, leading Justice Scalia to object in strong terms:

The principal...