Bench Memos

Law & the Courts

Judge Barrett on Stare Decisis

In her previous career as a law professor, Judge Amy Coney Barrett wrote extensively and intelligently on the topic of stare decisis (adherence to precedent).

In “Precedent and Jurisprudential Disagreement,” Barrett responds to academics who “have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule.” In particular, she argues that “one virtue of the weak presumption is that it promotes doctrinal stability while still accommodating pluralism on the Court.” She also argues that stare decisis is just one of many features of our judicial system that promotes doctrinal stability.

Look for Barrett’s critics to obscure the fact that Barrett is defending the Court’s existing “weak presumption” of stare decisis, not calling for a weaker version.

I’ll highlight here passages of the article that are most likely to be of interest to those assessing Barrett’s candidacy for the Supreme Court.

Barrett summarizes her “thesis that, at least in controversial constitutional cases, an overlooked function of stare decisis is mediating jurisprudential disagreement”:

On the one hand, [the weak presumption of stare decisis] avoids entrenching particular resolutions to methodological controversies. This reflects respect for pluralism on and off the Court, as well as realism about the likelihood that justices will lightly let go of their deeply held interpretive commitments. On the other hand, placing the burden of justification on those justices who would reverse precedent disciplines jurisprudential disagreement lest it become too disruptive. A new majority cannot impose its vision with only votes. It must defend its approach to the Constitution and be sure enough of that approach to warrant unsettling reliance interests. Uncertainty in that regard counsels retention of the status quo.

She develops the same point more fully later:

In hot-button cases where differences in constitutional philosophy are in the foreground, the preference for continuity disciplines jurisprudential disagreement. Absent a presumption in favor of keeping precedent, and absent the system of written opinions on which stare decisis depends, new majorities could brush away a prior decision without explanation. If only the votes mattered, and neither deference to precedent nor a reason for departing from it was required, a reversal would represent an abrupt act of will more akin to a decision made by one of the political branches. But in a system of precedent, the new majority bears the weight of explaining why the constitutional vision of their predecessors was flawed and of making the case as to why theirs better captures the meaning of our fundamental law. 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. The doctrine thus serves as an intertemporal referee, moderating any knee-jerk conviction of rightness by forcing a current majority to advance a special justification for rejecting the competing methodology of its predecessor. It also channels disagreements into the less disruptive approach of refusing to extend precedent—an approach that maintains better continuity with the past than does the abrupt turn of getting rid of it altogether.

Barrett addresses the “institutional legitimacy” arguments made by those who favor “a significantly stronger role for stare decisis” than the Court has adopted. She argues that the Court’s longstanding “weak presumption” that she is defending “protects institutional legitimacy and reliance interests more than is commonly supposed.* Citing Yale law professor Akhil Amar, she questions the proposition that the Court “should make decisions with an eye toward its reputation.” And even if it should, she observes that “there is little reason to think that reversals would do it great damage.” After all, stare decisis

is not a hard-and-fast rule in the Court’s constitutional cases, and the Court has not been afraid to exercise its prerogative to overrule precedent…. If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle….

The “protecting public confidence” argument seems to assume that the public would be shaken to learn that a justice’s judicial philosophy can affect the way she decides a case and that justices do not all share the same judicial philosophy. This, however, is not news to the citizenry.

On the specific goal of advancing legitimacy, Barrett further states that she “tend[s] 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. That itself serves an important rule-of-law value.”

As for the claim by some critics that “reversals occur because new appointments make new political preferences dominant”:

It is surely true that reversal is more likely to result from a new justice’s heretofore unexpressed opinion than from an existing justice’s change of mind. But the criticism is framed to suggest that overruling is driven by—and therefore tainted by—partisan political preferences. To be sure, partisan politics are not a good reason for overturning precedent. But neither are they a good reason for deciding a case of first impression. One who believes that an overruling reflects votes cast based on political preference must believe that all cases (or at least all the hot-button ones) are decided that way, for there would be no reason for politics to taint reversals but not initial decisions. If all such decisions are based on politics, there is no reason why the precedent—itself thus tainted—is worthy of deference. (Nor, for that matter, would there be reason to accept the legitimacy of judicial review.) Basic confidence in the Supreme Court requires the assumption that, as a general matter, justices decide cases based on their honestly held beliefs about how the Constitution should be interpreted. If one is willing to make that assumption about the decision of cases of first impression, one should also be willing to make it about the decision to overrule precedent. A change in personnel may well shift the balance of views on the Court with respect to constitutional methodology. Yet the fact that a reversal flows from a disagreement between the new majority and its predecessors about constitutional methodology does not itself render the overruling illegitimate, as criticisms of overruling sometimes suggest. Reversal because of honest jurisprudential disagreement is illegitimate only if it is done without adequate consideration of, and due deference to, the arguments in favor of letting the precedent stand.

Barrett also discusses “so-called superprecedents” like Brown v. Board of Education—“cases that no justice would overrule, even if she disagrees with the interpretive premises from which the precedent proceeds.” The force of these superprecedents, she argues, come not “from any decision by the Court about the degree of deference they warrant” but rather from the fact that there is an overwhelming public consensus supporting them. Barrett notes that “[s]cholars … do not put Roe on the superprecedent list because the public controversy about Roe has never abated.”

In “Originalism and Stare Decisis,” written after Justice Scalia’s death, Barrett explores Justice Scalia’s approach to precedent and the question whether stare decisis is compatible with originalism. She disputes the claim that originalism without stare decisis would produce chaos: “This threat is vastly overstated, because no originalist Justice will have to choose between his principles and the kind of chaos critics predict.” In particular, a “combination of rules—some constitutional, some statutory, and some judicially adopted—keep most challenges to precedent off the Court’s agenda.”

* The original version of this post did not frame this point as well as it should have.

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