Partly Agreeing with Clarence Thomas on Stare Decisis

Partly Agreeing with Clarence Thomas on Stare Decisis June 18, 2019

Stare decisis is a legal doctrine that says the Supreme Court should only overturn their own prior precedents in rare circumstances. Virtually every nominee to be a justice declares their fealty to this idea, usually as a generic response to avoid answering questions about whether they would overturn X, Y, or Z ruling. Justice Clarence Thomas, however, has never given much credence to the idea and he just wrote a long dissent in the double jeopardy case spelling out his argument. I partially agree with it.

The Court currently views stare decisis as a “‘principle of policy’” that balances several factors to decide whether the scales tip in favor of overruling precedent. Citizens United v. Federal Election Comm’n, 558 U. S. 310, 363 (2010) (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940)). Among these factors are the “workability” of the standard, “the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.” Montejo v. Louisiana, 556 U. S. 778, 792– 793 (2009). The influence of this last factor tends to ebb and flow with the Court’s desire to achieve a particular end, and the Court may cite additional, ad hoc factors to reinforce the result it chooses. But the shared theme is the need for a “special reason over and above the belief that a prior case was wrongly decided” to overrule a precedent. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 864 (1992). The Court has advanced this view of stare decisis on the ground that “it promotes the evenhanded, predictable, and consistent development of legal principles” and “contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827 (1991).

This approach to stare decisis might have made sense in a common-law legal system in which courts systematically developed the law through judicial decisions apart from written law. But our federal system is different. The Constitution tasks the political branches—not the Judiciary—with systematically developing the laws that govern our society. The Court’s role, by contrast, is to exercise the “judicial Power,” faithfully interpreting the Constitution and the laws enacted by those branches…

When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it. This view of stare decisis follows directly from the Constitution’s supremacy over other sources of law—including our own precedents,” Thomas wrote. “That the Constitution outranks other sources of law is inherent in its nature…For that reason, we should not invoke stare decisis to uphold precedents that are demonstrably erroneous.

The late Justice Scalia once said in an interview that one of the key differences between he and Thomas was that he had at least some respect for precedent while Thomas had none (the notion that Thomas was merely Scalia’s “lapdog” is a very popular myth among liberals, but it was nonsense from the very start). And here, I partly agree with Thomas, which is to say that I agree with his main point, that if a prior ruling is wrong, we should not be beholden to it and continue to allow it to govern us. Of course, he and I differ almost entirely on the question of which precedents are wrongly decided. But we also differ on how that should be determined and how the Constitution should be interpreted in almost all cases.

Thomas is an advocate, as he makes clear, of originalism, primarily in the original public meaning and intent. I, on the other hand, subscribe to Jack Balkin’s theory of “living originalism” and see the choice between original meaning and the Constitution being a “living document” to be a false one. The answer, I believe, is that it depends very much on which provisions of the Constitution we are interpreting. Some are very, very specific — you have to be 35 years old to be president — and others demand some level of abstraction in their interpretation. We cannot merely look at original meaning when trying to determine the limits of free speech or free exercise of religion, for instance, because of huge changes in society, technology, and so forth.

Living originalism, is, I think, a form of framework originalism, which is a very different thing from original meaning or original intent. Balkin explained in a 2008 law review article:

The most plausible version of orignalism is framework originalism, which views the Constitution as an initial framework for governance that sets politics in motion, and that must be filled out over time through constitutional construction. In implementing the Constitution, later generations must remain faithful to the basic framework, which requires fidelity to original meaning but not the original expected application of the text. This permits a wide range of possible future constitutional constructions that implement the original meaning and that add new institutional structures and political practices not inconsistent with it.

Framework originalism leaves space for future generations to build out and construct the Constitution-in-practice. Living constitutionalism occupies this space. It explains and justifies the process of constitutional development. Thus, strictly speaking, living constitutionalism is not a theory of constitutional interpretation at all but a theory of constitutional construction.

In short, framework originalism says that the Constitution set up a structure, a system of give and take between all three branches of government that allows each generation to interpret the text to meet the evolving needs, mores and standards of the country. It’s that framework that allows the three branches of government, and the underlying public opinion, to slowly but inexorably adapt those provisions of the Constitution that require abstraction to our needs. Thus, both originalism and living constitutionalism are valid — the originalism we should be concerned about is that structure it provides and allegiance to the broad principles of the text and it’s “living” in the sense that its meaning will inevitably evolve.

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