Amy Coney Barrett’s Stare Decisis Problem—And Ours

She respects precedent less than Antonin Scalia, meaning she’s ready to join Clarence Thomas and start taking a hammer to long standing decisions

The first question of any Senator to President Trump’s Supreme Court nominee should be: The President has publicly said that he wants you on the Court in anticipation of a case deciding the 2020 election. Did he say anything like that to you in your meetings with him? Regardless of the answer to that question, do you think that statement has increased public confidence in you, or the Supreme Court as an unbiased tribunal? Will you commit to recusing yourself from a 2020 election dispute because of those comments? Will you make that promise here and now?

If she does not so commit, unequivocally and without wiggle room, no Democrat or Independent can vote “aye.” She will have left open the possibility of collusion in the crudest power grab since the Defenestrations of Prague. She will be unqualified to serve.

By contrast, she should not be questioned about or opposed based on her religious faith or practice. Not only are such questions always improper, but in this case, they are tactically ham-fisted: Barrett is (as we shall all soon be reminded ad nauseam, and should stipulate now) personally a woman of great character, well-spoken, personally kind, and devoted in her personal life to family and good works. She seems far less prone to judicial tantrums and rhetorical abuse than the mentor for whom she clerked, the late Justice Antonin Scalia, who concealed personal charm on the bench in favor of vulgar bullying.

But there are short-term and long-term legal and constitutional questions that should be posed. She may or may not be willing to answer, but the questions are essential for outlining what is at stake in this rushed, improper appointment.

Senators will not get her to discuss specific cases or areas of doctrine. But they should ask her for her view of precedent, which is vital since, if she lives as long as Ruth Ginsburg did, her tenure as a Justice may last until 2058. As Trump himself said on Friday, an appointment like this may set “the tone of the country for 40 years, 50 years.”

A Justice Barrett seems to me likely to be more, not less, of a danger to democratic self-government than was Scalia. The reason is that—from her writings– her view of precedent seems tailor-made to allow a conservative majority to slash and burn its way through important precedents.

The judicial doctrine of stare decisis cautions judges to follow their courts’ precedents unless there is a good reason to depart from it. In the minds of a contemporary judge, a previous decision may be a “wrong” interpretation of the law. But there are often good reasons not to disturb it. For example, generations of litigants and judges may have relied on it, or the present-day conclusion that it is “wrong” may be almost as doubtful an earlier court’s judgment that is correct. Courts can and sometimes should overturn precedent (think, for example, of Brown v. Board of Education) but they should have a good reason and a persuasive explanation.

Scalia, who did more than any jurist to popularize the ide of “originalism,” embraced stare decisis even if, at some points, a precedent conflicted with his preferred view of the issue. In that, he implicitly contrasted himself with Justice Clarence Thomas. “I am a textualist, I am an originalist,” he said in 2008. “I am not a nut.”

A judge who does not acknowledge stare decisis is a nut, and, worse, a nut with a hammer. Thomas is one, and he has set his sights on overturning precedents in areas like freedom of the press and the right to counsel in criminal cases. And Amy Coney Barrett may very well provide another vote for Thomas-style radicalism. That is reason enough to oppose her.

I base this fear in part on a 2017 article, “Originalism and Stare Decisis,” published in the Notre Dame Law Review. In it, she explains that she, as a committed “originalist,” believes in precedent as much as the next judge.

But then—in a move familiar to anyone who ever took Intro to Philosophy—she supports that claim by simply changing what “precedent” means. “Originalism can be understood as a quintessentially precedent-based theory,” she wrote—“albeit one that does not look primarily to judicial decisions as to its guide.”

The picking of pockets begins there, and progresses thus:

Originalists maintain that the decisions of prior generations, cast in ratified text, are controlling until lawfully changed. The contours of those decisions are typically discerned by historical sources. For example, the original Constitution’s meaning may be gleaned from sources like the Constitutional Convention, the ratification debates, the Federalist and Anti-Federalist Papers, actions of the early Congresses and Presidents, and early opinions of the federal courts. Originalism thus places a premium on precedent, and to the extent that originalists reject the possibility of deviating from historically-settled meaning, one could say that their view of precedent is particularly strong, not weak as their critics often contend

One “could” say that, but one would be grievously wrong, on the principle once cited by Abraham Lincoln, that a cow has only four legs no matter what you call the tail. To a judge—one who is trying to serve as a judge—“precedent” denotes decisions on the same or similar issues by prior courts, coupled with government practices in areas where there have been few actual cases. It does not mean The Federalist, Gammer Gurton’s Needle, or The Letters of Heloise and Abelard. Historical materials can inform discussion of what precedent means—but they aren’t law. More to the point, judges are, by and large, singularly bad at reading these sources, and, when they do, they usually come up with a principle that oddly mirrors their present desires.

Scalia once called himself a faint-hearted originalist,” meaning that, for one thing, he admitted to being constrained by precedent. Barrett, by contrast, seems stout-hearted. We can glean that from her lengthy dissent from the Seventh Circuit case of  Kanter v. Barr. That case was brought by a convicted fraudster named Ricky Kanter, who had pleaded guilty to defrauding Medicare (he paid the government back $27 million) and had served a year in prison. Under long-established federal and state law, Kanter is barred from possessing firearms. He argued that this was unfair to him since he did his robbing with a fountain pen and thus was no danger to anyone.

“Felon in possession” laws are of long standing and are very important to law enforcement because felons, in general, have a high rate of recidivism. Kanter may be a choirboy when not defrauding, however, and his claim was entitled to respectful consideration. How should a court assess it? To begin with, caselaw is important. In 2008, the Supreme Court for the first time held that there is an individual right to own handguns. That decision, District of Columbia v. Heller, explicitly said it should not “be taken to cast doubt” on felon-possession laws. In the decades since Heller, no federal circuit has cast doubt on them either.

By and large, courts applied the Heller language to suggest that the Second Amendment doesn’t cover any felons. They have looked at the history of these laws and analyzed the benefit of keeping weapons away from those who have shown they are willing to break the law. Barrett, however, dissented—and in her dissent, she applied in full blast a technique pioneered by Scalia and Thomas. There was no nonsense about weighing benefits for her; she also asserted that Heller didn’t really mean that felon possession laws were constitutional. Then she concluded that history nowhere says in so many words that felons who commit “only” fraud can be dispossessed. Thus, history proved that Kanter should be allowed a weapon—the implication being that every felon in America should be able to require prosecutors to prove that he or she as an individual is dangerous. If that became the law, it would add a new procedural burden to felon dispossession–another spoke in the wheel of sensible gun regulation, It is also, to my mind, a dangerously unprincipled use of “history” –one that furthers, coincidentally, the long-term right-wing project of disabling all gun regulation.

Nor is there any reason to think a Justice Barrett would stop there. As the Affordable Care Act comes yet again before the Court, Barrett has made it clear that she rejects—indeed ridicules– the Court’s decisions upholding the health program against constitutional and statutory challenges. As for issues that may arise in the next four decades, there’s every reason to expect that, armed with her conservative social and economic views and her supple view of “precedent,” she will find marvelous arguments against any progressive policy. Her ascent bids fair to cement Trump’s new Court—which is the role played by the Court through too much of American history—as the place where the progressive movement goes to die.

Again, she seems like a splendid person and would make a sparkling academic colleague, one with whom I’d be thrilled to lock theoretical horns over port and bickies in the Senior Common Room. But her philosophy arises from the worst kind of academic theory and seems ill-suited to the practical work of judges.

Whether or not she promised Donald Trump to save his presidency, she has no more business being a judge than I do being Surgeon General of the United States.

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Garrett Epps

Garret Epps is the Legal Affairs Editor of the Washington Monthly and a professor of law emeritus at the University of Baltimore. He is the author of American Epic: Reading the U.S. Constitution and four other books about the Constitution.