Jurisprudence

Why This “Originalist” Supreme Court Would Disappoint the Founders

Barrett smiles in his robe, as does Barrett, as a military official passes in front.
U.S. Supreme Court associate justices Amy Coney Barrett and Brett Kavanaugh arrive in the House Chamber for U.S. President Joe Biden’s State of the Union address at the U.S. Capitol March 01, 2022 in Washington, DC. Win McNamee/Getty Images

Last month, the Supreme Court relied on its view of the Constitution’s original meaning in its landmark decisions involving abortion rights, gun rights, and religious freedom. None of these decisions, however, was actually consistent with originalism. They each failed to recognize a critical element of how the founders understood the Constitution: the founders believed courts should defer to precedent.

The court’s originalists have mistakenly embraced the view that, when the court’s precedents are inconsistent with the original meaning of the text, an originalist judge should overturn the precedent. Not only does this flawed originalism underlie the most critical decisions from last term, this approach places at risk other decisions that the court’s originalists may deem not to be supported by the constitutional text as it was originally understood. Those include the court’s decisions in Griswold, recognizing a right to use contraception, in Loving, recognizing a right to interracial marriage, in Lawrence, recognizing the right to engage in same-sex relationships, in Obergefell, recognizing the right to same-sex marriage and in Grutter, recognizing the constitutionality of the use of race as a factor  in higher education admissions decisions.

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In Dobbs v. Jackson Women’s Health Organization and Kennedy v. Bremerton School District, last term’s cases involving abortion rights and religious freedom, the Supreme Court overturned Roe v. Wade and Lemon v. Kurtzman, decisions that had stood for decades. In NYSRPA v. Bruen, its case involving gun rights, it relied on District of Columbia v. Heller, an originalist 2008 Supreme Court decision that effectively overturned U.S. v. Miller, a decision issued almost 70 years before. One can debate whether these decisions in fact capture the original meaning of the words in the Constitution. But, just as important, the majority failed to recognize a critical part of recapturing original meaning: the founders believed in stare decisis, the principle that courts should stand by their previous decisions.

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In Federalist 78, the founding generation’s central text about the judicial role, Alexander Hamilton stressed that following precedent was crucial to judicial legitimacy. He observed, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.”

James Madison had the same view. In one of the great constitutional debates of the founding era, Madison contended that Congress did not have the power to charter the Bank of the United States. But, after the Supreme Court had ruled that the bank was constitutional, Madison said that the court had decided the matter and, despite his personal views, the bank was constitutional. He wrote that “precedents, when formed on due discussion and consideration and deliberately sanctioned by reviews and repetitions [are] of binding influence, or rather, of authoritative influence in settling the meaning of the law.”

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Madison thought that this approach was necessary because people relied on court decisions and because they were entitled to believe that judicial decisions did not just reflect personal views. “It is a reasonable and established axiom,” he wrote, “that the good of society requires that the rules of conduct of its members should be certain and known, which would not be the case if any judge disregarding the decisions of his predecessors, should vary the rule of law according to his individual interpretation of it.”

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Madison (unlike Hamilton) suggested that there might be cases in which courts might overturn precedent “but they form exceptions which will speak for themselves and must justify themselves.” But as a matter of practice—and the court’s originalists say we should give weight to practice—the early Supreme Court never overruled its constitutional decisions.

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During John Marshall’s 34-year tenure as chief justice, the Supreme Court did not overrule any of its constitutional decisions. That restraint from overturning constitutional decisions did not happen because the justices believed that prior decisions had always been right. It is because they believed they had an obligation to follow precedent. For example, in the case of Ogden v. Saunders, Justice Bushrod Washington (the childless George Washington’s nephew and heir), wrote that his initial view of a constitutional matter was “incorrect, since it stands condemned by the decision of a majority of this Court, solemnly pronounced.”

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The court’s approach to constitutional precedent has changed over time. In his concurrence in Dobbs, Justice Brett Kavanaugh notes that since 1921 every member of the court has voted to overturn precedent. Even though it has come to be accepted, however, that approach is not consistent with the original understanding of the court’s role and the need the founders saw to respect precedent.

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Certainly some precedents of the court should be overturned. In Brown v. Board of Education, a unanimous court overturned Plessy v. Ferguson, which had held that segregation was constitutional, and no one would challenge that decision.

But the decision to overturn precedent cannot be based on a jurisprudence of original meaning. Founders like Hamilton, as well as the Marshall Court, believed that precedent had to be followed. Even Madison, generally regarded as the father of the Constitution by originalists, believed that Supreme Court precedent should be followed over his views of what the Constitution originally meant.

If originalism is to have any credible claim to principled judicial decision-making, originalist judges have to apply an originalist methodology that reflects how the founders understood the Constitution. Originalist judges must follow precedent.

Which means that, as the court potentially reconsiders precedent like Griswold, Loving, Lawrence, Obergefell, and Grutter it should remember that, for a true originalist, settled law is settled law.

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