Stare (In)decisis: The Elusive Role of Precedent in Originalist Theory & Practice

• Author: Nicholas Iacono
• Position: J.D., Georgetown University Law Center, 2022; B.A., Georgetown University, 2012
• Pages: 389-426

NOTES

Stare (In)decisis: The Elusive Role of Precedent in

Originalist Theory & Practice

NICHOLAS IACONO*

ABSTRACT

Marginalized for decades as a frivolous theory, originalism has become the

predominant interpretive philosophy on the nation’s highest court. With the

confirmation of Justice Amy Coney Barrett, the Supreme Court now boasts a

four member “originalist” plurality. While this is certainly a positive develop-

ment for constitutional jurisprudence, originalism’s ascendancy has brought a

much-debated question to the fore. How should the faithful originalist judge

contend with erroneous or “atextual” precedents? That is, deep-rooted legal

precedents based on interpretations that exceed, contradict, or ignore the

Constitution’s original meaning. Originalist scholars and jurists remain deeply

divided on this question. Some argue that judges must always overturn atextual

precedents regardless of the consequences, while others maintain that the “ju-

dicial power” of Article III allows judges to follow atextual precedents under

certain conditions. Indeed, this issue looms large over the Court’s upcoming

abortion decisions challenging the validity of Roe v. Wade. This Note seeks to

encourage further discussion on this critical question by assessing the compet-

ing originalist views on stare decisis and exploring the distinct positions on

stare decisis embraced by the Supreme Court’s four originalists: Justices

Thomas, Gorsuch, Kavanaugh, and Barrett. In this piece, I argue that while

originalist judges should overturn atextual precedents, Article III may give

judges the power to preserve certain erroneous precedents that have fostered

longstanding economic and property-based reliance interests.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390

I. STARE DECISIS IN ORIGINALIST THEORY. . . . . . . . . . . . . . . . . . . . . 392

A. Strong Presumption of Validity . . . . . . . . . . . . . . . . . . . . . . . 392

*J.D., Georgetown University Law Center, 2022; B.A., Georgetown University, 2012. I would like to

sincerely thank Professor Keith Whittington for sharing invaluable input and feedback on this Note and for

his “Constitutional Originalism” seminar that encouraged me to explore this important topic. Furthermore, I

am grateful to Professor Randy Barnett for encouraging thoughtful dialogue on originalism and

constitutional interpretation at Georgetown Law. I also thank the staff of the Georgetown Journal of Law &

Public Policy for their diligence and care in helping to edit this piece. © 2022, Nicholas Iacono.

389

B. Intermediate Approaches to Precedent. . . . . . . . . . . . . . . . . . 394

C. The Stare Decisis Skeptics: No Precedent Above Original

Meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400

1. Rebutting Textual Justifications for Stare Decisis . . . . . . 400

2. Responding to the Consequentialist & Reliance-Based

Critiques. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404

a. State Action & the Article V Amendment Process . . . 404

b. Delayed Effect of Judicial Orders . . . . . . . . . . . . . . 405

c. Grandfathering & Gravitational Force . . . . . . . . . . 405

d. Recognizing Individualized Reliance Claims . . . . . . 406

e. Gradual Restoration of Original Meaning . . . . . . . . 407

II. STARE DECISIS IN ORIGINALIST JUDICIAL PRACTICE . . . . . . . . . . . . 408

A. Justice Barrett on Precedent . . . . . . . . . . . . . . . . . . . . . . . . . 408

B. Justice Kavanaugh on Precedent . . . . . . . . . . . . . . . . . . . . . . 410

C. Justice Gorsuch on Precedent . . . . . . . . . . . . . . . . . . . . . . . . 410

D. Justice Thomas on Precedent. . . . . . . . . . . . . . . . . . . . . . . . . 412

E. Conclusions & Practical Implications: Predictions for a

Plurality-Originalist Court . . . . . . . . . . . . . . . . . . . . . . . . . . 413

III. CRITICAL ASSESSMENT: WHAT ROLE SHOULD PRECEDENT PLAY? . 421

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425

INTRODUCTION

Once dismissed as a fringe ideology, the last thirty years have witnessed an

explosion in the prominence of originalism

1

as a prevailing theory of constitu-

tional interpretation. The popular interest and scholarly debate fueling original-

ism’s rise have been driven, in large part, by the growing number of state and

federal judges embracing originalist methods. Recently, the confirmation of

1. Originalism has many variants, including original intent originalism, original methods

originalism, and original public meaning originalism. Unless stipulated otherwise, discussion of

“originalism” in this Note refers to original public meaning originalism, which posits that “[t]he

Constitution means what a hypothetical reasonable observer at the time of its ratification, in possession

of all relevant information, would have understood it to mean.” Gary Lawson, Mostly Unconstitutional:

The Case Against Precedent Revisited, 5 AVE MARIA L. REV. 1, 14 (2007).

390 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:389

Justice Amy Coney Barrett to the U.S. Supreme Court has once again thrust the

much-misunderstood theory into the national spotlight. As has become standard

in confirmation battles, Justice Barrett faced intense questioning regarding the

doctrine of stare decisis

2

and the validity of controversial precedents concerning

abortion rights, same-sex marriage, and healthcare. These tense exchanges

hearken to a yet unsettled debate that continues to rage within originalist dis-

course. As one scholar notes: “[t]oday, the biggest single challenge facing origi-

nalists is reconciling originalism with precedent.”

3

What is the originalist judge

to do when she encounters a demonstrably-erroneous precedent, i.e., a prior judi-

cial opinion that clearly violates the original meaning of the Constitution?

4

Does

fidelity to original meaning always require reversal, or does the Constitution per-

mit—perhaps even require—adherence to erroneous precedent under certain cir-

cumstances? With the Court now hosting a plurality of four self-described

originalists, a reexamination of stare decisis’s place in originalist theory is timely

and consequential. Indeed, one can hardly evaluate the impact that a majority-

originalist Court will have on the nation’s legal landscape without a thorough

consideration of this issue.

5

This Note will contribute to this discussion by assessing the varied positions on

stare decisis within originalist theory and practice. Part I will trace the academic

views on precedent in originalist scholarship, noting some unsettled questions

raised by these theories. Part II will examine the positions on stare decisis taken

by the Court’s four originalists, noting how these views compare and contrast

with the theories outlined in Part I. Part II will conclude with the prediction that,

given the considerable reliance interests at stake, it is unlikely that the Court’s

originalist plurality will completely overturn key precedents related to abortion

and same-sex marriage. Part III will critically assess the prevailing theories, argu-

ing that the Court’s Article III “judicial [p]ower,”

6

as it was originally understood

at Ratification, incorporates the authority to preserve erroneous precedents where

substantial economic and property-based reliance interests are implicated.

2. For the purpose of this Note, stare decisis refers to the doctrine that the Supreme Court must

adhere to its own prior decisions on matters of constitutional interpretation, absent substantially

compelling reasons to overturn them.

3. Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds, 22

CONST. COMMENT. 257, 258 (2005); see also Lee J. Strang, An Originalist Theory of Precedent: The

Privileged Place of Originalist Precedent, 2010 BYU L. REV. 1729, 1729 (2010) (“However, busied

with building and defending originalism, originalists have thus far failed to fully explain the role of

precedent in constitutional interpretation.”).

4. Unless stated otherwise, “precedent” in this Note refers to the horizontal precedents of the U.S.

Supreme Court concerning matters of constitutional interpretation. Furthermore, “erroneous” or

“atextual” precedent refers to a prior Supreme Court decision, which, in the opinion of the originalist

justice, is based on an interpretive reasoning that cannot be reconciled with the original public meaning

of the constitutional text.

5. See Barnett, supra note 3, at 269–70 (“Knowing the degree to which a commitment to originalism

entails the rejection of the doctrine of precedent may well influence the degree to which originalism is

deemed acceptable by academics, judges, and the general public.”).

6. U.S. CONST. art. III, § 1.

2022] ROLE OF PRECEDENT IN ORIGINALIST THEORY & PRACTICE 391