At Ricochet, Richard Epstein: Originalism and Constitutional Mistakes – with comments by John Yoo (here, here, and here), and a further comment by Epstein here. (The discussion arises from a post by Peter Robinson asking whether overruling precedent is consistent with "conservative jurisprudence," a somewhat different question from what originalism requires.)
In the comments, Professor Yoo’s argument against precedent runs as follows:
I have always doubted that stare decisis is a doctrine that conservatives should favor on the Supreme Court. For the common law, that is, decisions by state judges on matters such as contracts and torts, I can see a case for stare decisis. Earlier decisions represent the application of principles to new facts by thousands of judges over time — stare decisis represents the considered wisdom of the community of the present and the past, along the lines of Burke's defense of custom and tradition.
But the job of the Supreme Court is different. It is not to make policy, as with the common law courts, but to interpret the Constitution. There are only nine Justices, not the thousands that make up the common law system of the states. And the nine Justices are to be compared to the hundreds in Congress or the thousands in the executive branch — it is quite likely that the stare decisis of the Supreme Court does not enjoy any superior expression of the reasonable judgments of the community over time in comparison to the other branches of government.
And … there is [a] third reason…. When common law courts make mistakes, they can be overruled by the legislature. Stare decisis represents acquiescence by the legislature. But when the Supreme Court makes a mistake, the other branches must amend the Constitution – 2/3 of the Congress, 3/4 of the states – to overrule it. So the Court must have greater freedom to correct its own mistakes.
Professor Epstein replies that some decisions are “so embedded in common practice that the Court could not go back on [them], and should not try.” Ultimately he invokes John Roberts’ observation, quoted initially in Peter Robinson’s post: “Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system.”
Interestingly, to the extent these are arguments about stare decisis and originalism (rather than about stare decisis and conservative jurisprudence), both are policy arguments that assume one’s commitment to originalism allows one to choose on policy grounds whether or not to accept stare decisis. That might not be so, however: perhaps originalism itself supplies the answer – either prohibiting or requiring stare decisis as an element of originalism itself. For more on this question, and a recommended approach, see John McGinnis and Michael Rappaport: Reconciling Originalism and Precedent.
Posted at 8:00 AM