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  • Stare Decisis for Originalist Judges – Randy E. Barnett - Law Liberty
    Vertical Stare Decisis: The Supreme Court Clause Does originalism need a doctrine of stare decisis? Should not an originalist judge simply follow the original meaning of the Constitution—where it can be identified—even when doing so runs contrary to previous decisions of the Supreme Court? To see why some theory of stare decisis may be
  • How Janus Weakens Stare Decisis - lawliberty. org
    Stare decisis has in the past been a notoriously pliable doctrine on the Court, but insofar as one can discern its shape, it comes in two versions—weak and strong The strong version begins with a strong presumption in favor of sticking with the holding of any case previously decided by the Court That presumption can be overcome, but, except
  • The Truth About Stare Decisis – Andy Smarick
    Jackson Women’s Health Organization, is about stare decisis, namely the extent to which members of this Court should defer to their predecessors’ opinions in Roe v Wade and Planned Parenthood of Southeastern Pennsylvania v Casey Both of those decisions have been criticized for decades, especially by conservatives, for creating a national
  • Stare Decisis in an Originalist Theory of Law – Ilan Wurman
    Stare decisis fosters the law’s endurance, and consequently its durability, because it supports legal continuity as a common, human project over a particular judge’s unconstrained sense, in a single time and place, of the correct outcome The law as the “artificial perfection of reason” is a common project achieved by generations of judges and lawyers over the span of centuries
  • Why Justice Thomas Is Wrong about Precedent - Law Liberty
    This term Justice Clarence Thomas wrote an important concurring opinion on stare decisis in Gamble v United States, the case on the scope of double jeopardy There Thomas rejects stare decisis for both constitutional and statutory cases except in cases where the precedent is not “demonstrably erroneous ” Thomas recognizes that judges in
  • Is Justice Kavanaugh Grievously Wrong on Stare Decisis?
    “Grievously wrong” seems open-ended and invites a decision about how good the prior case is as a matter of policy in the Justice’s view—even if it is wrong as a matter of interpretation I agree that with Kavanaugh that Constitution contemplates stare decisis, but there is no evidence that it contemplates that standard
  • Roberts and Thomas Battle Over Burke – John O. McGinnis - Law Liberty
    Russo, stare decisis was also at issue and the Chief Justice’s vote was also controlling in a 5-4 decision, although in this case, he wrote not for a majority but only for himself June Medical concerned the constitutionality of a Louisiana requirement that abortion providers also have admitting privileges at hospitals not less than 30 miles away from the abortion providers’ facility
  • Justice Scalia, Fainthearted Originalism, and Nonoriginalist Precedent
    (Of course recognizing stare decisis is seemingly even more incompatible with nonoriginalist theory ) But stare decisis alone is not enough to prevent originalism from being what many would consider too bitter a pill What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for
  • Jonathan Mitchell on Stare Decisis and Constitutional Text
    Jonathan Mitchell’s recent article on Stare Decisis and Constitutional Text has received some attention See here for the article’s abstract and here for a short post on it While I have not studied the article carefully, I have digested its basic argument Mitchell argues that the Supremacy Clause only establishes that the Constitution, federal statutes, […]
  • Integrating Originalism and Stare Decisis – Marc O. DeGirolami
    Stare Decisis Stare decisis is about adjudication, not interpretation It is the view that judges should generally stand by a prior precedent in a new case even where they believe the precedent is wrong Justifications for stare decisis tend to be pragmatic and provisional Stare decisis is said to promote judicial legitimacy (the public needs





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