“A Supreme Court without Stare Decisis”

The always thoughtful Professor Orin Kerr recently penned a post expressing his disagreement with “lawyers or bloggers” who maintain “that the Supreme Court should not rely on the doctrine of stare decisis .” As one of the more outspoken opponents of constitutional stare decisis , I feel compelled to briefly respond to the good professor’s post.

Before addressing Professor Kerr’s argument, I want to commend him for attempting to fairly present the viewpoint of those who maintain that the doctrine of stare decisis has little to no bearing in the constitutional-law context:

The argument against stare decisis is a simple one: It’s the Supreme Court’s job to get it right, and the Justices can’t get it right if they follow past decisions that may have gotten it wrong. As a result, the Supreme Court should always try to get it right, and it should only follow past cases to the extent the current Justices think the old decisions are correct. The goal should be loyalty to the Constitution, not loyalty to old cases by old courts.

As to the last sentence, all I can say is “Amen!” I do, however, take issue with Professor Kerr’s assertion that my camp believes the Supreme Court “should only follow past cases to the extent the current Justices think the old decisions are correct .” The issue for many originalists, of course, is not whether a prior decision is “correct,”  but whether the reasoning/holding of that case is based on a plausible interpretation of the constitutional text at issue. If it is, and a substantial body of case law has been built upon the foundation of this decision, then it is perfectly reasonable for a justice to let that precedent stand as is (even if that justice would have ruled differently as a matter of first impression). But this type of “hard” originalist case is not at the center of the “stare decisis” debate. The question, plainly put, is this: At what point does it cease to matter that a prior Supreme Court decision is nonsense on stilts?

For those of us in the (Clarence) Thomas Camp, the answer is: Never. A Supreme Court decision that has no basis in the text, history, or structure of the Constitution is always and forever a judicial abomination, no matter how much time passes (e.g., Dred Scott v. Sandford , Plessy v. Ferguson ). For the Burkean originalist (see, e.g., Scalia), the answer is: It depends on whether the line of jurisprudence is no longer controversial (i.e., it has essentially become woven into the fabric of the Constitution—whatever in the heck that means). Finally, for the living constitutionalist, the answer is: It depends on whether the decision in question enshrines into the Constitution a preferred policy preference (e.g., Roe v. Wade =Stare decisis is sacrosanct!; Bowers v. Hardwick = Stare decisis is fo’ suckas!). In comparing the foregoing approaches to constitutional interpretation, it doesn’t take a law degree to recognize which one is concerned with, well, actual interpretation of the relevant text.

So, when Professor Kerr laments “that a world in which there was really no stare decisis at the Supreme Court . . . would be a serious mess,” my response is: “It cannot be any worse than a world in which the Supreme Court consistently ignores the plain and original meaning of the Constitution and engages in judicial policy making.”

In any event, the prudential concerns expressed by Professor Kerr in his post cannot and do not lessen a Supreme Court justice’s duty to faithfully interpret the Constitution. If a prior supreme court decision cannot be squared with the plain/original meaning of the Constitution, then that decision should be overruled with impunity, regardless of its jurisprudential vintage. Whatever utility the doctrine of stare decisis might have in the constitutional-law context, it cannot be used as a vehicle for amending the Constitution by judicial fiat.