And no nominee has openly endorsed views as extreme as Barrett’s on the doctrine of stare decisis, the principle that the court should not lightly overrule its precedents. In a series of law review articles, Barrett makes clear that in matters of constitutional interpretation, she would not hesitate to jettison decisions with which she disagrees.
“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it,” Barrett wrote in 2013.
In the arid language of law reviews, this is a bombshell, one that could explode across the landscape of constitutional law. It’s not just a matter of abortion and the future of Roe v. Wade.
Also on the Barrett chopping block could be the right of same-sex couples to marry; the existence of affirmative action programs at colleges and universities; the constitutional protections against discrimination based on gender that Ginsburg made the center of her career; and environmental protections and other regulatory efforts enacted as part of the congressional power to oversee interstate commerce.
Michael Gerhardt, a University of North Carolina law professor whose scholarship on stare decisis is cited extensively in Barrett’s writing, termed her approach to overturning precedent “radical.” If Barrett puts her academic views into action and four other justices go along, he said, “it will produce chaos and instability in constitutional law.”
Certainly, the court overrules its own precedents with some frequency; the justices like to say that stare decisis is not an “inexorable command.” But the general understanding has been that precedent should not be discarded lightly.
The rule governing reversals has been, as Justice Brett M. Kavanaugh observed in a concurring opinion this year, “that the Court requires something ‘over and above the belief that the precedent was wrongly decided.’ ”
Rather, the court has looked to factors such as the quality of the reasoning in the precedent, its age, the degree to which it has been relied on by those affected, and whether it has turned out to be workable in practice. Every Supreme Court nominee in recent decades, including Robert H. Bork, has emphasized the importance of sticking by precedent.
Once on the bench, some justices — notably the late Antonin Scalia — have expressed more willingness than others to reexamine and overturn decisions they consider wrong. This is true particularly in cases involving constitutional, rather than legislative, interpretation, where Congress has little power to remedy what it considers an erroneous interpretation.
On the current court, Justice Clarence Thomas has endorsed a particularly aggressive approach to overturning precedent, similar to what Barrett has stated.
“In my view, the Court’s typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions—meaning decisions outside the realm of permissible interpretation—over the text of the Constitution and other duly enacted federal law,” Thomas wrote last year in a case involving the double jeopardy clause. “When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.”
That sounds very much like Barrett. In a 2017 article, just before going on the bench, she explained that stare decisis poses particular problems for those, including her, who are adherents of an originalist approach to constitutional interpretation.
“For an originalist, the decision whether to follow erroneous precedent can be more than a matter of weighing the costs and benefits of change,” she wrote. “At least in cases involving the interpretation of constitutional text, originalists arguably face a choice between following and departing from the law embodied in that text. While the debate about stare decisis is old, modern originalism introduced a new issue: the possibility that following precedent might sometimes be unlawful.”
Barrett argued that critics of this approach overstated both the risks of jettisoning precedents and the benefits of strict adherence to stare decisis. As to the risks, she said, other mechanisms — such as the court’s ability to control which cases it hears — mean that some arguably incorrect cases (the constitutionality of paper money is a classic example) would never be challenged as a practical matter.
As to the benefits, she wrote in 2013, the argument that stare decisis serves to protect public confidence in the judiciary “seems to assume that the public would be shaken to learn that a justice’s judicial philosophy can affect the way she decides a case and that justices do not all share the same judicial philosophy. This, however, is not news to the citizenry. . . . That is why Supreme Court nominations are an issue in presidential elections.”
Indeed. Conservatives have been working toward this moment for decades. Originalism without consequences is meaningless. Barrett offers the tantalizing prospect of originalism coupled with a willingness to translate dry theory into disruptive action.