Bench Memos

Law & the Courts

Another Misreading of Barrett on Precedent

In this essay, Garrett Epps contends that Judge Amy Coney Barrett “may very well provide another vote for Thomas-style radicalism” on stare decisis—in other words, that she might be ready to overturn a precedent on the sole ground that she believes that it was wrongly decided. Epps badly misrepresents Barrett’s record and has no foundation for his claim.

For starters, Epps entirely neglects Barrett’s 2013 law-review article (which I excerpted here) in which she vigorously defends the Court’s traditional approach to stare decisis on constitutional issues on the ground that that approach “promotes doctrinal stability while still accommodating pluralism on the Court.” As she states in that article:

Justifying a decision to overrule precedent … 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.

Epps instead relies on a 2017 article by Barrett. But his account of that article (which he doesn’t link to) requires a huge imaginative leap on his part. Although you wouldn’t know it from his account, Barrett in that article explores Justice Scalia’s approach to precedent. She argues that Scalia’s record illustrates that the clash between originalism and stare decisis “is vastly overstated, because no originalist Justice will have to choose between his principles and the kind of chaos critics predict.”

Nowhere in that 2017 article does Barrett retreat one inch from what she wrote in her 2013 article. Nowhere does she endorse, or even hint at endorsing, Justice Thomas’s approach.

Epps is alarmed by the fact that Barrett argues that originalism “can be understood as a quintessentially precedent-based theory, albeit one that does not look primarily to judicial decisions as its guide.” As she explains more fully:

Originalists maintain that the decisions of prior generations, cast in ratified text, are controlling until lawfully changed. The contours of those decisions are typically discerned by historical sources. For example, the meaning of the original Constitution may be gleaned from sources like the Constitutional Convention, the ratification debates, the Federalist and Anti-Federalist Papers, actions of the early Congresses and Presidents, and early opinions of the federal courts. Originalism thus places a premium on precedent, and to the extent that originalists reject the possibility of deviating from historically settled meaning, one could say that their view of precedent is particularly strong, not weak as their critics often contend.

Epps somehow imagines that this account of originalism has some sort of implications for how an originalist justice should deal with judicial precedent that is unsound on originalist grounds. But all that Barrett is providing is the originalist benchmark for determining whether a judicial ruling is wrong. She presents the competing positions of originalist scholars on how to deal with non-originalist precedent, but she nowhere states that she thinks that the fact that a ruling can’t be defended on originalist grounds means that it should be overruled. Again, such a position is flatly contrary to her 2013 article.


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