Bench Memos

Law & the Courts

Ruth Marcus Badly Distorts Judge Barrett on Stare Decisis

In her Washington Post column, Ruth Marcus grossly misrepresents Judge Amy Coney Barrett’s academic writing on the principle of stare decisis (adherence to precedent).

On constitutional questions, the Supreme Court has adopted what Barrett labels a “weak presumption of stare decisis”: Precedent can be overruled (stare decisis is not absolute), but it’s not enough that the Court concludes that the precedent is wrong. Rather:

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.

It is this approach that Barrett is defending.

Marcus is therefore dead wrong when she claims that Barrett’s position is that “she would not hesitate to jettison decisions with which she disagrees.” She is dead wrong to contend that that Barrett’s view—defending the Court’s existing practice—is “extreme.”

Marcus clips out of context this statement by Barrett: “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.” As my fuller account of Barrett’s article shows, Barrett offers this (tentative) statement in addressing the narrow question whether the Court’s existing practice is best defended on the ground that it advances the Court’s legitimacy. The entire point of her article is to argue that the Court’s practice is better defended on the separate ground that it “promotes doctrinal stability while still accommodating pluralism on the Court.”

Addendum (9/27): On context, I’d add/clarify that Barrett in that portion of her article (pp. 1725-30) is specifically addressing the “institutional legitimacy” arguments made by those who favor “a significantly stronger role for stare decisis” than the Court has adopted. Barrett argues that the Court’s longstanding “weak presumption” that she is defending “protects institutional legitimacy and reliance interests more than is commonly supposed.”

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