Originalism’s Precedent Problem

This paper explores the tension between originalism and stare decisis in judicial decision-making. Originalism, which seeks to interpret the Constitution as understood at the time of its ratification, has gained bipartisan acceptance among judges. However, this interpretive approach faces challenges regarding precedent: How should originalist judges handle past decisions that deviate from the original public meaning of the Constitution? The paper examines this issue, particularly in light of originalists’ varied stances on the role of precedent.

Some originalists, like Antonin Scalia and Amy Coney Barrett, acknowledge the need for stare decisis to maintain legal stability, albeit with allowances for overturning egregiously wrong decisions. Others, such as Clarence Thomas and John Yoo, prioritize adherence to the original meaning, even at the cost of overturning established precedents. This paper introduces a third perspective, exemplified by Brett Kavanaugh, which balances originalist interpretation with the practical need for stability, considering factors like the severity of a decision’s error and reliance interests. The paper argues that originalism can be compatible with stare decisis if it incorporates a nuanced understanding of reliance interests and acknowledges the potential consequences of overturning precedent.

This modified approach would help prevent the judiciary from becoming an arena for arbitrary policy changes and maintain the legitimacy of judicial decisions.