Overrule Stare Decisis

Josh Hammer

Current Issue

In the Trump era, it seems that no legal topic has more thoroughly percolated its way through our public discourse than the issue of stare decisis in constitutional interpretation — that is, the extent to which a federal court should feel "bound" by, or afford precedential bias in favor of, its own constitutional precedents. During the U.S. Supreme Court nomination battles of both Neil Gorsuch and Brett Kavanaugh, there was no issue that more animated the passions of prominent elected officials — albeit sometimes as a stand-in for substantive debates. Whether it was on the Sunday talk-show circuit or from the Senate Judiciary Committee table, President Donald Trump's political opposition often seemed obsessed with how the president's high-court nominees understood the relationship between their judicial duty and the doctrine of stare decisis.

But the resurgence of the stare decisis debate has hardly been cabined to the world of Trump-era partisan mudslinging. Indeed, ideologically diverse members of the Supreme Court itself took pains over the past two terms to expound on how they believe stare decisis norms interact with judicial duty.

On the current Court, opinions on the propriety of stare decisis norms run the gamut. Justice Stephen Breyer, joined by the rest of the Court's contemporary liberal bloc, took a remarkably strong view of stare decisis in the 2019 case Franchise Tax Board of California v. Hyatt. "The law can retain the necessary stability only if this Court...overrul[es] prior precedent only when the circumstances demand it," Breyer wrote. "It is...dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question."

That Breyer would advocate such a steeled defense of stare decisis shouldn't be surprising. As seen through the Gorsuch and Kavanaugh nomination battles, modern legal and political progressives invariably bandy about stare decisis as a nod and a wink to the Court's major abortion precedents: Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.

Nor is this a phenomenon exclusively cabined to the left's flank. In the 2020 case June Medical Services v. Russo, a four-justice plurality nullified an anodyne Louisiana regulation that would have required abortionists to maintain admitting privileges at a hospital within 30 miles of their clinics. Chief Justice John Roberts concurred with the plurality, notwithstanding his dissent four years earlier in the nearly identical case of Whole Woman's Health v. Hellerstedt, due to his peculiar belief that stare decisis norms required it: "The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike." Similarly, in the 2020 Sixth Amendment case Ramos v. Louisiana, Kavanaugh dedicated 18 pages to explicating his own view of the binding scope of stare decisis: "[A]pplying the doctrine of stare decisis, this Court ordinarily adheres to precedent, but sometimes overrules precedent."

Yet while modern legal progressives march in lockstep on the matter, usually with Roe and Casey lurking in the background, the value and constitutional soundness of adhering to stare decisis norms in constitutional interpretation is a topic that has often vexed and divided those who would interpret the Constitution through the prism of the prevailing originalist lens: original-public-meaning originalism. Indeed, the place of precedent in the thinking of judicial conservatives has come to be contested in ways that highlight the complexity of originalism and the challenges it faces in the years to come.

THE DEBATE OVER PRECEDENT

The standing of stare decisis in constitutional interpretation is a topic with a rich pedigree in originalist scholarship. Discussion of the subject dates back to a seminal 1994 piece from Gary Lawson, a Boston University School of Law professor, and reached a seeming apogee with Justice Clarence Thomas's concurrence in Gamble v. United States, a case decided barely a month after Hyatt. Between these two events, a wide variety of opinions have been offered on this topic. And as originalism continues to gain traction despite ascendant theoretical criticisms from the right, the reconciliation — or lack thereof — between originalist interpretive methodology and stare decisis is a topic that will only become more significant.

The most famous intra-originalist stare decisis debate was the long-running disagreement on the topic between Thomas and his longtime senior colleague on the Court, the late Justice Antonin Scalia. Thomas has long advanced a profound skepticism of anything beyond a tiny role for precedent in the realm of constitutional interpretation. Famously, in the 1998 case Eastern Enterprises v. Apfel, Thomas noted in a concurrence that he was unpersuaded by and would therefore be willing to reconsider the 1798 case Calder v. Bull — a case older than even the landmark Marbury v. Madison.

Gamble represents the most robust distillation to date of Thomas's views on stare decisis. In his concurrence, Thomas criticized the Court's "typical formulation of the stare decisis standard" — by which he likely had in mind the Casey abortion precedent's strongly articulated presumption in favor of following the Roe precedent — for "elevat[ing] demonstrably erroneous decisions...over the text of the Constitution." He called for the reform of the Court's stare decisis jurisprudence to ensure that the Court exercises "'mer[e] judgment,'" which he said "can be achieved through adherence to the correct, original meaning of the laws we are charged with applying."

In marked distinction to the system of judge-made common law that prevailed in England, Thomas asserted that in our constitutional order, the "judicial task is modest: We interpret and apply written law to the facts of particular cases." He further claimed that a "demonstrably incorrect judicial decision...is tantamount to making law, and adhering to it...perpetuates a usurpation of the legislative power." For Thomas, the only role for precedent comes via the arcane and anachronistic process of constitutional "liquidation." James Madison mentions this process in Federalist No. 37, Alexander Hamilton discusses it in Federalist No. 78, and the subject is most closely associated today with the legal scholarship of Caleb Nelson, a professor at the University of Virginia School of Law. "Liquidation," as the framers used the term, is the iterative process by which early stage post-enactment interpreters of a genuinely obscure or ambiguous legal text may help, as Madison himself put it in an 1833 letter, "settle its meaning."

Scalia, contra Thomas, was sometimes more willing to engage in a nuanced balancing-test analysis before deciding that a certain constitutionally grounded precedent, no matter how erroneous from his perspective, ought to be discarded. While Scalia publicly lauded and vehemently defended the role of a text's original public meaning when it came to interpretation, he conceded as early as his Supreme Court confirmation hearing that there are some cases that are "so woven in the fabric of law" that, despite all other considerations, they ought not be disturbed. Scalia expanded on his approach to stare decisis in the 2009 Supreme Court case Montejo v. Louisiana, where he laid out four factors to consider: the workability of a precedent, whether the precedent was well-reasoned, the age of the precedent, and the reliance interests at stake.

While Scalia's enumeration of crisply defined stare decisis factors in Montejo is indeed a far cry from the Court's meandering musings and strong presumption in favor of following precedent in its Casey decision, originalists could still be readily forgiven for viewing Scalia's approach to stare decisis as existing in a state of tension with the overarching originalist project. In fact, Scalia himself admitted it, famously describing stare decisis as "a pragmatic exception" to his originalist judicial philosophy in his 1997 essay, "A Matter of Interpretation: Federal Courts and the Law." As Randy Barnett, professor at Georgetown University Law Center, formulated it in 2005, "If precedent trumps original meaning, then the Constitution would truly be what the Supreme Court says it is, rather than the Supreme Court itself being bound to adhere to the Constitution."

For those normatively invested in the distinctly American form of republican self-governance to which the preamble's "We the People" speaks, the notion that Supreme Court justices could be unleashed not merely to freely re-interpret the Constitution, but to actually alter its meaning, ought to strike us as the un-American tyranny of unelected black-robed oracles. It is a notion fundamentally at odds with rudimentary tripartite constitutional structure, the Hamiltonian notion advanced in Federalist No. 78 that the judiciary is the "least dangerous" of the three federal branches, and the framers' very inclusion of the Article V process for actually amending the Constitution. For reasons advanced by Lawson and Michael Stokes Paulsen, professor at the University of St. Thomas School of Law, such exaltation of the judicial branch also runs counter to the foundational principle of constitutional — and not judicial — supremacy that grounded Chief Justice John Marshall in Marbury.

As a purely normative matter, Thomas's approach to stare decisis is preferable to the approach advanced by Scalia. The popular sovereignty of which the preamble speaks is most easily reconcilable with constrained unelected judges, and their conscientiously attempting to discern the original public meaning of a text — preferably a morally "thicker," Hamiltonian/Marshallian conception of the original public meaning — is the most intellectually compelling restraint imaginable.

As Scalia himself opined in "A Matter of Interpretation," the original public meaning of a constitutional provision is "usually...easy to discern and simple to apply." In practice, furthermore, it seems that virtually every judicial attempt to divine a purportedly principled approach to the muddle that is stare decisis falls short: Many of the justices who waxed poetic about the virtues of stare decisis in Casey, after all, were the same ones who, in the 2003 case Lawrence v. Texas, saw no problem whatsoever in overturning the 17-year-old precedent of Bowers v. Hardwick regarding legal restrictions on homosexuality. It is also the same precedent-venerating, pro-Roe modern progressives who are unflinchingly united in their clamoring for the Court to overrule a comparably recent precedent: 2010's Citizens United v. Federal Election Commission. Intellectual consistency, alas, can prove difficult.

Normative arguments for a form of stare decisis that involve giving real weight to constitutionally unsound precedent, no matter what the purported pragmatic or consequentialist reasons offered for adhering to those precedents may be, inevitably fall short on grounds of intellectual cherry-picking and confirmation bias. But whether Thomas's powerful rejection of stare decisis articulated in Gamble — or at least something closely approximating that approach — is not merely normatively preferable, but also constitutionally mandated, is a distinct and different question.

STARE DECISIS AND THE CONSTITUTION

The argument against the constitutionality of stare decisis in constitutional interpretation is one most closely associated with professors Lawson and Paulsen. It is simple, elegant, and compelling from the perspectives of both textualism and constitutional structure.

According to Paulsen, a proper reading of Marbury does not — contra the Court's specious ruling a century and a half later in the 1958 case Cooper v. Aaron — support the judicial-supremacist position that the judiciary's exposition of the Constitution is necessarily the all-powerful "supreme law of the land." Instead, Chief Justice Marshall's most famous ruling stands

for constitutional supremacy, judicial independence, interpretive coordinacy, and the personal responsibility of all who swear an oath to support the Constitution to be guided by their best understanding of the Constitution and not pliantly to accede to violations of the Constitution by other governmental actors.

As the phrase "governmental actors" necessarily includes judges, those "violations of the Constitution by other governmental actors" must include prior judicial decisions that incorrectly interpreted the Constitution. Accordingly, Marshall's Marbury argument for judicial review in the context of reviewing coordinate legislative- or executive-branch actions must also apply to judicial review of prior judicial actions themselves. Therefore, as Lawson concluded in his 1994 article, "the constitutional case against precedent is precisely coterminous with the constitutional case for judicial review."

Marbury, furthermore, may be seen as correctly decided only if it is properly interpreted in a constitutional-supremacist (rather than judicial-supremacist) fashion. The fundamental act of physically codifying a written constitution — which distinguished the American legal order from its English forebear — established the ultimate superiority of the Constitution through its inherent nature. The proper interpretation of Marbury thus amounts to a conflict-of-laws analysis by which Marshall was forced to choose between competing sources of law that are each enumerated in the Supremacy Clause of Article VI of the Constitution.

In choosing the Constitution as superior to federal statute, Marshall properly discharged his conflict-of-laws analytical duty. In fact, under Marbury, the argument for judicial review of prior judicial actions is stronger than the argument for judicial review of legislative actions. Judicial precedents, unlike congressionally passed and presidentially enacted statutes, are not enumerated in the Supremacy Clause; that clause merely lists, as "the supreme law of the land," the Constitution itself, federal statutes, and treaties. The framers could have easily listed judicial precedents if they had wished to do so. And yet they did not.

In addition to the Constitution's inherent structural superiority and the implications of the Supremacy Clause's plain text in making the case against stare decisis, there is also the logic of the Article VI oath-of-office requirement. Under the Article VI Oath Clause, all legislative, executive, and judicial officers of both the federal and state governments are sworn to "support this Constitution." That is a solemn obligation. The founding generation, influenced by pious Protestantism as it was, took quite seriously what Judge William Pryor of the U.S. Court of Appeals for the 11th Circuit described earlier this year as an "ancient tradition of ensuring honesty." Indeed, Marshall proclaims as much toward the end of his Marbury opinion: "Why does a judge swear to discharge his duties agreeably to the Constitution of the United States," he asks, "if that constitution forms no rule for his government?" For the same reason the Article VI Oath Clause instructs a judge to prefer the Constitution to statutes repugnant thereto, so too does it necessarily instruct judges to prefer the Constitution to judicial precedents repugnant thereto.

The structural simplicity and textualist elegance of the Lawson and Paulsen arguments ought to be persuasive for those committed to the original public meaning of a constitution that, as its preamble makes clear, is inherently oriented toward normative ends such as "establish[ing] justice" and "promot[ing] the general welfare." More specifically, it is emphatically the case that, where the plain text and original public meaning of a constitutional provision is in a genuine state of tension with the Court's precedents interpreting that provision, it is the precedents that must lose out to the original public meaning. And they must lose out every single time.

But it must be emphasized that neither Lawson nor Paulsen — the two scholars most emphatically associated with the constitutional argument against stare decisis — actually avers that a constitutional actor is here, there, and everywhere constitutionally forbidden from so much as considering all instances of precedent. In his "revisited" argument against precedent in 2007, Lawson concedes that "[i]f precedent is being used for epistemological reasons as good evidence of the right answer," then the use of the precedent as persuasive authority is permitted.

From this perspective, a precedent carefully reasoned through a morally informed originalist exegesis may be considered persuasive by a subsequent judicial decision-maker in much the same way a subsequent judicial decision-maker might consider persuasive a piece of originalist scholarship from an originalist academic. Indeed, in a 2005 article, Paulsen is careful to denigrate stare decisis as "utterly unjustifiable" only when it is defined as "giving some degree of decision-altering force to prior judicial interpretations simply because they are prior judicial interpretations and in contradiction of what one otherwise would conclude are correct principles." The key term here is "decision-altering force": Paulsen's definition is a strong form of stare decisis, and he is correct to haughtily dismiss it. As Justice Thomas noted in Gamble, such a strong form of stare decisis might have made some sense in a common-law legal system, but "our federal system is different."

Thomas's concurrence in Gamble also relied heavily on Nelson's scholarship on the founding-era process of liquidation. As the term "liquidation" was understood by founding-era political and legal luminaries, the iterative actions of constitutional actors — of both judicial and non-judicial varieties — could help, in the early stages following the enactment of a genuinely obscure or ambiguous constitutional provision, assist in discovering and ultimately ascertaining the meaning of that provision. Citing Nelson's 2001 essay that brought the concept of liquidation to the forefront of originalist scholarship, Thomas opined that a precedent "may remain relevant when it is not demonstrably erroneous."

The key word for Thomas is "relevant." Whereas Nelson persuasively cites Madison's late-stage "flip-flop" on the issue of the constitutionality of the Bank of the United States to support the contention that a "sufficiently deliberate course of legislative or judicial decisions" can "settle" the meaning of a genuinely obscure legal provision and therefore actually bind future actors, Thomas refrains from going quite that far. Thomas does not view the iterative liquidation process as binding, per se; he merely suggests that if an ambiguous legal provision has been liquidated in a way that is not demonstrably erroneous from the perspective of original-public meaning originalism, then it is permissible for a later court to adhere to that liquidated provision even if it would have ruled differently as an issue of first impression.

Thomas likely has the better of the argument. Madison asserts in Federalist No. 37 that "[a]ll new laws...are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications." And Hamilton observes in Federalist No. 78 that, in the instance of two statutes at loggerheads with each other, "it is the province of the courts to liquidate and fix their meaning and operation." Madison therefore seems to implicitly define "liquidate" as less powerful and binding than the word "ascertain," and Hamilton similarly seems to implicitly define "liquidate" as less powerful and binding than the word "fix." For both men, it is not at all obvious that Article III courts' liquidation prerogative could authoritatively bind future constitutional decision-makers. Rather, Thomas's mere suggestion that the iterative liquidation process can "clarify" a genuinely ambiguous term's meaning and thus ensure a precedent remains "relevant" is a more natural reading of their views.

Thomas's Gamble concurrence thus articulates a constitutionally permissive role for precedent, but it is a small, liquidation-centric role for precedent nonetheless. And for reasons previously mentioned, it is not a role for precedent with which either Lawson or Paulsen would necessarily even disagree.

But lest we let the liquidation tail wag the dog that is the compelling prima facie case against the presumed constitutionality of precedent, it is important to again re-emphasize the power of the core idea advanced in Marbury. While stare decisis was a commonly understood juridical concept at the time of the American founding, founding-era courts of law also readily understood the superiority of the written law. In the 1786 Pennsylvania Supreme Court case Kerlin's Lessee v. Bull, the court held that "if a Judge conceives, that a judgment given by a former Court is erroneous, he ought not in conscience to give the like judgment, he being sworn to judge according to law." Similarly, in the 1787 Court of Appeals of Virginia case Commonwealth v. Posey, one justice observed, "although I venerate precedents, I venerate the written law more."

With this as historical backdrop, it is easy to see why in Marbury, Marshall defined "[t]he judicial Power" of which Article III speaks as the "[p]ower...to say what the law is" in a particular case or controversy properly before an Article III tribunal. A federal court's obligation to say "what the law is" sometimes entails a conflict-of-laws analysis among competing sources of law, such as Marshall's analysis in Marbury. Here, Lawson and Paulsen are correct to say — and Nelson would surely agree — that it is unconstitutional and a violation of a federal judge's oath of office to consider judicial precedent persuasive if it is demonstrably erroneous in terms of botching the original public meaning of a constitution that is inherently oriented toward normative ends like "establish[ing] justice." Only when a genuinely ambiguous or obscure constitutional provision has been properly liquidated by early stage post-enactment interpreters of the Constitution, and the result of that liquidation is within the realm of exegetical reasonableness, may those prior interpretive actions be properly considered by — or "remain relevant" for, as Thomas put it in Gamble — future constitutional actors. Otherwise, Marbury demands that the Constitution win out every single time over judicial precedent that is manifestly contrary to the original public meaning of a given constitutional provision.

PRECEDENT IN THE FOUNDING ERA

Any liquidation-centric role for constitutionally permissible precedent must be viewed as a dispensation from the persuasive case for a default rule against precedent's constitutionality. This seems to be the view expressed by Justice Thomas in his Gamble concurrence, and rightfully so. But it should also be conceded that leaving some role — albeit a tiny, liquidation-based one — for precedent in the realm of constitutional interpretation likely also accords with the original public meaning of Article III's vesting of "[t]he judicial Power."

To be sure, relying on this provision for anything other than an immensely narrow role for precedent is weak textualist tea. Any textualist argument positing that strong stare decisis norms were inherently embedded in Article III's promulgation of "[t]he judicial Power" faces an uphill battle against the far clearer textualist implications of Article VI's Supremacy and Oath clauses, which buttressed Chief Justice Marshall's ruling in Marbury.

Yet at the same time, the broader judicial concept of precedent was in fact universally recognized and understood at the time of the founding. Scholars John McGinnis and Michael Rappaport are thus likely correct to conclude, as they did in 2009, that "the Constitution as a matter of judicial power incorporates a minimal notion of precedent." Although the word "minimal" in that formulation ought to be stridently emphasized, this contention is sound insofar as it applies to the liquidation process. As but one example, McGinnis and Rappaport cite a 1776 committee, ordained by the Virginia legislature and chaired by Thomas Jefferson, for codifying the commonwealth's laws. In explaining why the committee did not endeavor to codify the entirety of the extant common law into statutory law, Jefferson explained that "every word and phrase" in the new statutes "would become a new subject of criticism and litigation, until its sense should have been settled by numerous decisions." This sounds an awful lot like the liquidation-based iterative interpretation process described by both Madison and Hamilton.

Of course, McGinnis and Rappaport's contention that Article III's vesting of "[t]he judicial Power" "requir[es] judges to deploy a minimal concept of precedent" goes too far. But there is also no reason to conclude that such a truly "minimal" role, if cabined to the context of putting persuasive weight on the conclusions of well-reasoned, liquidation-centered iterative processes, poses any insurmountable constitutional obstacle. Thomas seems to agree, considering his guidance in Gamble that "[i]f...the meaning of a statute has been 'liquidated' in a way that is not demonstrably erroneous...stare decisis permits courts to constitutionally adhere to that interpretation, even if a later court might have ruled another way as a matter of first impression."

To the extent Article III's textual vesting of "[t]he judicial Power" entails any instruction for judges to value and elevate precedent, this is just about as far as such permission would go. It simply cannot go any further, given the far clearer textual implications of Article VI's Supremacy and Oath clauses as well as the unassailable correctness of Marbury's structural holding of constitutional supremacy. But the sheer ubiquity of the mentioning of "precedent" by founding-era political figures and legal theorists alike suggests that Chief Justice Marshall's formulation of "[t]he judicial Power" as the power "to say what the law is" did not universally prohibit the judicial consideration of any and all forms of precedent. And the "liquidation" framework provides as good a framework as any for understanding the minimal degree of precedent that is constitutionally permissible.

It is possible to see a conflict here between the elegant textualist and structuralist arguments opposed to constitutionally permissible stare decisis, on the one hand, and arguments rooted in founding-era historical practice and the framers' subjective intentions — here best seen by the liquidation discussions in the Federalist Papers — on the other. But Thomas's Gamble concurrence suggests that there is not much of a conflict here. A federal judge assigning some persuasive weight to the iterative interpretive process that ensues in the early post-enactment stages of a genuinely obscure or ambiguous constitutional provision does not violate that judge's Article VI oath to "support this Constitution." Indeed, there is no reason to read both Madison and Hamilton as being in a state of tension with the Constitution unless there is a truly compelling textualist reason to do so. Where there is a reasonable way to read the combined musings of both founding luminaries as consistent with the constitutional text and the basic implications of constitutional structure, we should do so. That is precisely what Thomas does in Gamble.

The view espoused in Thomas's Gamble concurrence is thus fundamentally persuasive. For the core structuralist reasons of constitutional supremacy that undergird Marbury v. Madison, stare decisis in constitutional interpretation is unconstitutional to the extent the precedent persuasively relied upon is inconsistent with the Constitution's original public meaning — especially an original public meaning consistent with the jurisprudences of founders like Hamilton, Marshall, and James Wilson, undergirded by the natural law, and oriented toward the preamble's substantive ends of human flourishing.

This conclusion is likely jarring for the overwhelming majority of those — lawyer and layman alike — who are not intimately familiar with long-running originalist debates on this topic. That such a conclusion may be unnerving, however, does not in any way negate its veracity. Stare decisis may have deeply rooted, traditional antecedents in medieval English common law, but while the early American republic adopted that common law, the Constitution's framers also decided to shepherd their grand experiment in a slightly different direction.

English common law, while largely incorporated at the state level in our federalist system of dual sovereignty, was affirmatively not to be the national government's "supreme law of the land." Rather, the framers who met in Philadelphia for the 1787 Constitutional Convention decreed that "[t]his Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." What's more, they added, "the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." And if that were not clear enough, they also made "support[ing] this Constitution" the sole oath criterion for all "[t]he Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states." Constitutional supremacy, already structurally inherent in the framers' deliberate decision to codify a durable constitution, thus also merits unassailable textual support. The original public meaning of our inherently moral Constitution must therefore reign "supreme" over all bodies of law — common law, executive orders, statutes, and, not least of all, judicial precedents — that are repugnant thereto.

THE LIMITS OF PRECEDENT

In the aftermath of June Medical Services, it has never been more imperative for political conservatives, constitutional originalists, and all those who properly value tradition and interpretive fidelity alike to unite around a doctrinal rejection of anything other than an extraordinarily weak role for the purported persuasiveness — let alone decision-altering or binding force — of precedent. This will require the conservative intelligentsia and politicians alike to act in an intellectually consistent fashion. There can be no proverbial table pounding about how misguided it would be, as a pure matter of recently decided precedent, for the Court to overturn high-profile precedents that conservatives cherish — the Second Amendment case District of Columbia v. Heller and the First Amendment case Citizens United v. Federal Election Commission perhaps chief among them. Instead, conservatives and originalists must offer defenses of such decisions as these on each case's discrete constitutional merit. Not only is that the far more intellectually honest approach, it would also sharpen originalist argumentation and put legal progressives on the defensive as to why it is they, and they alone, who are ostensibly content to retreat to the non-substantive argumentative weakness of procedural "precedent."

True, it can be conceded that precedent serving as a mere persuasive thumb on the scale is constitutionally permissible. Such properly liquidated precedent of genuinely obscure or ambiguous constitutional provisions may, as Justice Thomas put it in Gamble, "remain relevant" for future constitutional actors. But let us not lose the constitutionalist forest for the liquidation trees. As logic and common sense would suggest, stare decisis norms are generally in deep tension with the intellectual integrity of the originalist project. As conservative legal luminary Charles Cooper put it three decades ago, "much of the rationale underlying the operation of the doctrine of stare decisis in the common law context is simply inapplicable in the statutory or written law context."

Justice Scalia was honorably candid in describing stare decisis as a "pragmatic exception" to his originalist judicial philosophy. For compelling textualist and structuralist reasons that find unmistakable support from no less a case than Marbury v. Madison, Thomas's more antagonistic approach to stare decisis is the one required by the Constitution. From a normative perspective, too, Thomas's approach is vastly preferable in that it values strict interpretive faithfulness to better constrain the unelected denizens of Hamilton's "least dangerous" branch. Liquidation may be a principled, historically grounded, textually justifiable dispensation from the default rule against precedent's constitutionality, but it is a dispensation nonetheless.

Exceptions must not swallow rules. It is time for the Court to formally overrule one of its most ancient maxims: its long-held presumption against overruling its own precedents.

Josh Hammer is opinion editor of Newsweek, a research fellow at the Edmund Burke Foundation, and of counsel at First Liberty Institute.


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