Stare decisis is the doctrine that a court should rule the way a previous court ruled even when the judges of the second court disagree with the earlier ruling. This doctrine poses an obvious problem for an originalist judge or justice. If a previous judicial decision reached an outcome contrary to what the original meaning of the Constitution requires, the originalist judge or justice is bound to rule contrary to that original meaning. In this way, the doctrine of stare decisis puts the rule provided by previous judges above the rule provided by the text of the Constitution.

I commend Marc DeGirolami for his nuanced and balanced essay carefully and fairly describing the current state of play among originalists on the role of stare decisis. Particularly helpful is his use of Gary Lawson’s distinction between theories of interpretation and theories of adjudication. Properly understood, stare decisis is not a theory of what the text of the Constitution means; it is a doctrine purporting to instruct judges on how they should decide cases.

In this comment, I too will focus on the latter of these issues: how should an originalist justice or judge approach the doctrine of stare decisis? How should a jurist who accepts that the meaning of the text of the Constitution was fixed at the time it was adopted, deal with previous judicial decisions that may deviate from that meaning? The views I express in this essay are tentative. I have not published them previously because I am still wrestling with the issue. But, since I accepted the invitation to participate in this symposium, I will fulfill my commitment by offering these observations.

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 required by the original meaning of the Constitution, let’s first consider what’s called “vertical stare decisis.”

Vertical stare decisis concerns the precedential effect of a higher court’s decisions on a lower court. In the federal system, the vertical stare decisis effect of the decisions of the U.S. Supreme Court is especially important because of “the Supreme Court Clause” of the Constitution. The Supreme Court Clause in Article III reads, “[t]he judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish.”

The “supreme Court” specifies not the court’s name, but its function; it is the highest court, and its decisions bind both what the Constitution calls the “inferior Courts” that Congress may create and the several states on issues of federal law. No one doubts that the supremacy of the Supreme Court requires lower courts to honor the directives of the Supreme Court in a case on which the Court has ruled. But so too does it require lower courts to decide future cases with similar facts in the same way, even if a lower court judge believes that the Supreme Court’s previous decision was inconsistent with the original public meaning of the constitutional text.

By the same token, inferior court judges who reject originalism must adhere to the outcomes dictated by the Supreme Court’s originalist precedents. For example, a lower court judge who rejects the Court’s originalist analysis of the “right to keep and bear arms,” or who thinks the Second Amendment is outmoded, must in future cases still apply the individual right that the Supreme Court concluded was dictated by the original meaning of the text.

Adherence to some version of “vertical” stare decisis is commanded by the original meaning of the Supreme Court Clause of the Constitution because, without vertical stare decisis, the hierarchical judicial system adopted in Article III cannot function as designed. But what theory of stare decisis should inferior court judges adopt? What does it mean to be faithful to the precedents of the Supreme Court (or those of their own circuit)? To answer this question, originalists need a theory of stare decisis.

An Originalist Working Theory of Precedent

To simplify a complex subject, let me describe two different theories of precedent that operate in the federal courts. I will call one, “the Broad View,” and the other, “the Classical View.” On the Broad View, when the Supreme Court includes a statement in an opinion, such as “We hold that X,” X is now the law for lower courts. A similar legal effect results from statements like, “The law is Y” or “The rule is Z.” The Broad View allows justices to announce rules that go beyond the facts of the case and the arguments of the parties before them. The Broad View treats opinions of the Supreme Court like super statutes, their language to be parsed and applied by lower courts as though it was legislation.

An originalist judge should reject the Broad View. For one thing, it lacks originalist foundations. The early practice of the Supreme Court followed the English model of seriatim opinions in which each justice offered his own reasoning or “opinion” for his vote. Read the opinions in Chisholm v. Georgia. Justice Iredell’s dissenting opinion appears first, followed by four more.

Distilling the holding of a case from multiple opinions required an analysis of the relation between the facts of a dispute and the outcome. The stated reasoning provided in the opinions of the justices might be illuminating, but their opinions themselves were not “binding.” Until Chief Justice John Marshall established the practice, there was no “Opinion of the Court” that could be binding. So at least until then, there could be no canonical “we-hold-that” statements in Supreme Court opinions to be given legislative force by lower courts.

Moreover, the idea of judicial-legislative holdings is based on a modern conception of the common law as judge-made law. This was a conception of judging that did not exist at the founding, when common-law judges were thought to find not make the law. Therefore, it could not have informed the original meaning and scope of the “judicial power” in Article III.

The Supreme Court has always asserted the power to overrule its own prior decisions—even if a precedent is longstanding and even if it has been reaffirmed on many occasions.

Finally, by issuing legislation-like rulings to be applied to factual circumstances not before the Court, the Broad View is in tension with the Supreme Court’s limited jurisdiction. The Supreme Court is supposed to be a court that decides cases and controversies based on the arguments presented to it by adversarial parties. It is not a legislature designed to make policy for the public by crafting general rules to be applied in the future.

Under the Classical View of stare decisis, the “holding” of a case is the ratio decidendi. That is, the rule that is logically entailed by the reasoning (“ratio”) that was necessary to decide the case (“decidendi”) on the basis of the legally-salient facts that were before the court. The holding of a case is the reasoning that explains the outcome in light of the facts reported by the Court. The objective is for future courts to decide cases with similar facts in the same way.

This formula limits the scope of judicial holdings in two ways:

First, holdings are a function of the reasoning that is necessary to the outcome of the case. Portions of an opinion that address questions or issues that do not need to be resolved in order to reach the outcome are discarded as “dicta.”

Second, holdings are limited to those reasons that address the legally salient facts presented by the record. Reasoning that addresses factual scenarios that were not presented to the court should not be considered in determining the holding of a case.

Limited in these ways, it is the “holding” or ratio decidendi of a judicial decision that provides the legal norm to be applied in future cases. The Supreme Court Clause binds lower court judges to the ratio decidendi of Supreme Court precedents—and no more. Lower court judges are not required to follow every jot and tittle of Supreme Court opinions; they need only decide “like cases alike” by following the reasoning that was necessary to reach the outcome on the basis of the legally-salient facts.

For example, in Dred Scott v. Sandford, the Court infamously held that a person of African descent could never be a citizen of the United States. For this reason, because Dred Scott was not a U.S. citizen, the Court’s Article III jurisdiction to decide cases between citizens of different states was lacking. Because it lacked jurisdiction to hear the case, the rest of Chief Justice Taney’s opinion was nonbinding “dictum.” In that portion, he claimed that a Congressional bar on the taking of slaves into a free territory of the United Stated deprived slaveholders of their “property” in violation of the Due Process Clause of the Fifth Amendment.

Given that federal courts have not formally adopted the broad judicial-legislation view of stare decisis, an originalist judge is not bound by stare decisis to adopt the Broad View. Lower court judges are therefore free to adopt the Classical View, the ratio decidendi approach. The Classical View of precedent allows more room for originalist inferior court judges to employ originalist reasoning to reach originalist results in more cases.

Horizontal Stare Decisis: The Judicial Power

Let me now turn to the issue of whether the Supreme Court is bound to follow its own previous erroneous decisions. This is called “horizontal stare decisis.” To begin with, it’s important to observe that the Supreme Court does not treat its previous decisions as binding in the same sense that lower courts do. And it never has.

True, the justices do periodically invoke the doctrine of stare decisis and attempt to explain when prior decisions should be followed or not, as Justices Kennedy, Souter, and O’Connor did in Planned Parenthood v Casey. But quite unlike the inferior courts, the Supreme Court has always asserted the power to overrule its own prior decisions—even if a precedent is longstanding and even if it has been reaffirmed on many occasions. For example, in Brown v. Board of Education, the Supreme Court refused to adhere to the “separate but equal” rule it had established almost 50 years earlier in Plessy v. Ferguson.

For some justices, Roe v. Wade is currently and will always be in play. For other justices, Citizens United and D.C. v. Heller and a host of Rehnquist Court decisions are susceptible to reversal as soon as they have the votes. And, lest we forget, modern originalism arose in response to the New Deal, Warren, and Burger Court’s wholesale rejection of many precedents that stood in the way of their progressive political agenda.

This means that, unlike inferior court judges, an originalist Supreme Court justice—like every justice—has the option of voting inconsistently with previous Supreme Court decisions. Indeed, because the Supreme Court’s rulings are “final” within the judiciary, future justices must be free to vote otherwise so the Court’s errors can be corrected.

In this regard, Professor DeGirolami’s proposal that justices respect precedents that have become “grounded in deep-rooted traditions of law, politics, and culture” may or may not be a good idea. But it is not itself grounded in our deeply-rooted traditions of law, politics, and culture. Like originalism, his is also a reform proposal that would require “buy-in” by justices to become our practice. No doubt there is a normative case to be made for such a proposal. But so too is there a normative case to be made for judges to adhere to the original meaning of the text whenever a faithful application of that text leads to a particular result.

And that’s what’s missing from Professor DeGirolami’s proposal: any imperative to bring the precedents of the Supreme Court gradually into alignment with the original meaning of our written Constitution. Without that imperative, stare decisis becomes the “exception” that swallows the Constitution. It can also be invoked selectively to avoid originalist results a justice does not like—or ones that would be unpopular. Such opportunism by “originalist” justices undermines originalism.

As I understand it, then, Professor DeGirolami’s approach resembles the so-called “common-law constitutionalism” that is advocated by David Strauss in his book, The Living Constitution. If so, then it is a surrender to nonoriginalist judging. Given that Professor DeGirolami says he is just “moderately originalist-positive”—originalism curious?—he may have missed this implication of his proposal.

Is there, then, any proper role for horizontal stare decisis at the Supreme Court? I think so. Supreme Court justices should give “weight” to previous opinions of the Court that a justice is satisfied utilized originalist reasoning in good faith. The reason for this is epistemic. Careful originalist research is often difficult and time-consuming. And we cannot be confident of the conclusions of originalist analysis until it is subjected to genuine peer review by other knowledgeable originalist scholars holding different views.

For this reason, originalism requires a division of labor between scholars who research original meaning in advance of a particular case or controversy and an originalist judge or justice who must decide many cases under the pressure of time. Once the Court has reached a conclusion on the basis of peer-tested originalist scholarship, therefore, there are good prudential reasons for other originalist justices to defer to that conclusion unless and until it is called into question by sufficiently persuasive competing originalist scholarship. And they might even impose some burden of proof on advocates claiming that a previous opinion grounded in good faith originalism was in error.

Because time is scarce, there is also a reason to adhere to nonoriginalist precedent in a case where that precedent leads to results that are consistent with original meaning—where adhering to originalism would not change the result. On the other hand, adopting originalism in such cases makes transitioning to a more consistently originalist jurisprudence less costly. Indeed, there are sound originalist justifications for much of modern constitutional doctrine, and it would bolster the case for originalism for this to be more widely known.

Where a big change in the doctrine is warranted, however, an originalist majority—should we ever get one—might “stay” their ruling to provide time to amend the Constitution the right way: through Article V. They might even urge (in dicta) that such an amendment should be enacted, while affirming their own powerlessness to amend the Constitution themselves. If a previous nonoriginalist precedent has truly become “grounded in deep-rooted traditions of law, politics, and culture,” an Article V amendment would likely be forthcoming. This used to be our practice. Reviving the culture of amending the Constitution via the states—rather than via a majority of the Supreme Court—would be healthy for our politics and our culture.

There is a great deal more to say about Professor DeGirolami’s essay than I cannot attempt here. For one thing, I have not addressed the theoretically challenging concept of “liquidating” the meaning of texts that were unclear when enacted. I view this practice as distinct from employing stare decisis where the meaning is sufficiently clear. But we must never lose sight of the ultimate goal: attaining consistency with the written Constitution to which all justices and judges have taken an oath. Originalism claims that, to the extent the meaning of that Constitution was fixed when it was adopted, a faithful judge has a duty to follow this fixed meaning, unless a superior authority says otherwise. Justices of the “supreme Court” should be striving to restore the meaning of the Constitution—the whole Constitution. The doctrine of stare decisis is not a justification for their failure to do so; it is an excuse.