Reading The Law of Blood can help us understand the beliefs that animated National Socialism, and help us see what they were not.
With his customary gracefulness and graciousness, Professor Marc DeGirolami has written a thoughtful essay on the relationship between originalism and stare decisis. While acknowledging that originalism and stare decisis can tug in opposing directions, DeGirolami argues that when they are both working properly—i.e., when they are operating according to “the deep-rooted traditions of law, politics, and culture”—there is significant unity between these two methods of achieving adjudicative consistency.
DeGirolami’s effort is a worthy endeavor, but it ultimately falls flat because it turns on a questionable two-step process. First, DeGirolami offers a novel understanding of stare decisis, one that requires a consistency of principles rather than a consistency of adjudicated facts and rules. Second, DeGirolami tells us that these deep-rooted principles can guide the discernment of the original public meaning of a constitutional provision. DeGirolami thus integrates originalism and stare decisis by dissolving both ingredients in his “law as tradition” jurisprudential stew.
The result is an analysis that preserves not only little of judicial precedent and original constitutional meaning, but little of the American legal tradition as well.
An Integration or Disintegration of Stare Decisis?
DeGirolami begins his discussion of stare decisis by defining the doctrine as “the view that judges should generally stand by a prior precedent in a new case even where they believe the precedent is wrong.” This is, indeed, the textbook definition of stare decisis. No problem there.
But at the end of the essay, DeGirolami takes an abrupt turn and tells us that “[s]tare decisis is not about following the most recent case.” He uses Chief Justice Roberts’s recent opinion in June Medical to illustrate his point. According to DeGirolami, Chief Justice Roberts erred in proclaiming that stare decisis is “‘about simply treat[ing] like cases alike.’” Stare decisis, for DeGirolami, does not require “voting for something today that one thought was wrong four years ago.”
This is a puzzling departure from DeGirolami’s earlier (and correct) definition of stare decisis. Whether one adopts a narrow or broad understanding of stare decisis, the essential requirement of the doctrine is that, unless one of the stare decisis exceptions obtains, judges are obligated to reach the same legal dispositions in factually similar cases.
Therefore, whatever one thinks of the constitutional merits of the claim in June Medical, Chief Justice Roberts was on firm ground in proclaiming that, because of Whole Woman’s Health v. Hellerstedt (2016), a case involving “nearly identical” facts, following stare decisis in June Medical did mean voting “for something today that [Chief Justice Roberts] thought was wrong four years ago.”
That DeGirolami treats Chief Justice Roberts’s June Medical decision as a departure from stare decisis is all the more puzzling because, according to the leading empirical work on stare decisis, Harold Spaeth and Jeffrey Segal’s Majority Rule or Minority Will: Adherence To Precedent On The U.S. Supreme Court (2001), the efficacy of stare decisis is observable only in this precise scenario—i.e., a case in which a Justice joins the majority on the basis of a precedent in which that same Justice was in dissent. Oddly, DeGirolami suggests just the opposite: Instead of finding that June Medical is one of the rare instances of stare decisis working on the Supreme Court, DeGirolami finds that stare decisis plays a central role in our legal system but is not on display in June Medical.
What, then, does stare decisis mean for DeGirolami? Stare decisis, he tells us, requires judges to “pick up the legal thread connecting a long and lasting line of cases.” DeGirolami’s conception of stare decisis is about consistency of underlying principles, not consistency of adjudicated facts and rules. This “consistency of principle” approach is strikingly similar to Ronald Dworkin’s “law as integrity” theory of judging. While this may be a compelling account of the law, the Dworkinian obligation to connect factually disparate cases through deep underlying principles is not what we generally understand by stare decisis, despite some strained attempts to integrate the two.
Moreover, as Fred Schauer and Larry Alexander have pointed out, the stare decisis benefits that DeGirolami outlines in his essay (“the legal values of stability and ‘impersonality’”) may depend on treating precedents as rules. It is doubtful that DeGirolami’s Dworkinian notion of consistency can achieve these stare decisis benefits.
Finally, it is worth noting the tension in DeGirolami’s treatment of stare decisis (as a “legal thread”) and his work on law and tradition (which “focuses on practices, rather than abstract principles or general tests, as constituting constitutional meaning”). DeGirolami’s writing on legal traditionalism correctly treats traditions as concrete, granular, felt experiences (as opposed to abstract creeds or propositions). But why does that thick view of tradition not carry over into his view of judicial precedent? Indeed, it is hard to see how judicial precedents can help preserve “the deep-rooted traditions of law, politics, and culture” if they are going to operate on the periphery of our social fabric as legal threads, as opposed to robust rules and norms of conduct with the power to constrain and conserve particular ways of life.
An Integration or Disintegration of Originalism?
DeGirolami defines originalism as “the view that the text of the Constitution means what it meant to the relevant public adopting it.” This definition, based on the “public meaning” of the text, excludes the older way of doing originalism, the so-called “original intent” originalism practiced by Raoul Berger and Judge Robert Bork. DeGirolami defends his restrictive definition on the ground that this is the way that most contemporary originalists practice originalism. That is true, but why should the way that leading originalists currently do originalism define what constitutes originalism as a concept?
This restrictive definition is an especially odd choice for DeGirolami, because he identifies as an observer rather than as a practitioner of originalism. One would expect an observer to take greater care in describing the manifold versions of the theory. Moreover, DeGirolami is a legal traditionalist who has argued that “a tradition that is too short, or too sparse, lacks interpretive authority.” One would expect the author of such a statement to be more attentive to the ways in which originalism worked before the most recent generation of originalists refined the theory to be about linguistic content and not historically rooted intentions.
I do not bring this up simply to quibble about definitions; DeGirolami’s choice carries deep implications for his integrative effort. The “original intentions” approach confines originalists to the relevant facts as they were understood at the time of a constitutional provision’s adoption. For example, while “original intent” originalism left some space for disagreement about the scope of the Fourteenth Amendment in its impact on race relations, this framework foreclosed originalist arguments on such non-racial matters as sexuality and sexual orientation, because these non-racial matters were not part of the particular intentions expressed by the 39th Congress in adopting the Fourteenth Amendment. Given how much of the Supreme Court’s Fourteenth Amendment jurisprudence has extended outside of race relations, the “original intentions” approach presents a sharp conflict with stare decisis.
The “public meaning” approach, however, demands less of stare decisis, because, in Larry Solum’s words, “fixed original public meaning can give rise to different outcomes given changing beliefs about facts.” As applied to the same-sex marriage controversy, for example, the “public meaning” approach means that the question is not whether the 39th Congress understood race and sexual orientation to be similar when they adopted the Fourteenth Amendment, but rather whether the original meaning of “equal protection,” when applied to our notions of equality and human sexuality, forbids the government to distinguish between opposite-sex and same-sex relationships. As Ilya Somin has noted, under the “public meaning” approach “new factual evidence about the nature of same-sex relationships can legitimately lead originalists to revise their understanding of the way the antidiscrimination principles of the Fourteenth Amendment apply to such cases.”
In other words, while the “original intentions” approach means the world of 1868 tugs against our factual understandings, the “public meaning” approach means our factual understandings tug against the world of 1868. And as a result, the former approach to originalism creates a sharp conflict with judicial precedents that have incorporated these evolving factual understandings, while the latter approach can often accommodate these judicial precedents. Which version of originalism that DeGirolami adopts is therefore critical to his analysis.
DeGirolami’s narrow definition of originalism becomes even more curious when juxtaposed with the enormous breadth DeGirolami permits within “public meaning” originalism. Indeed, he scours the variations within this category for the most inclusive version, the one that permits precedent to inform the discernment of “original public meaning.” By limiting his understanding of originalism to “public meaning” originalism, and then finding a version of this theory that incorporates precedent into the content of “public meaning,” DeGirolami is able, presto, to produce a harmony between stare decisis and originalism.
Restoring the American Legal Tradition
Any effort to restore the American legal tradition must engage the fact that our constitutional order has been revolutionized through a vast array of “individual liberty” decisions. As Bruce Frohnen describes this shift, the Supreme Court’s Fourteenth Amendment jurisprudence has transformed American constitutional law from a mediating order (i.e., a constitutional order that “mediates among more primary social groups and institutions”) into a commanding order (i.e., a constitutional order that “shape[s] the conduct of individuals, groups, and political actors to produce a society that has a specific character”).
In accord with this commanding order, the federal judiciary has emancipated the individual from the strictures of the past, including the traditional institutions of family, church, and community. This has had the effect of also emancipating us from one another, thus denying the “social bond individualism” that Richard Weaver found to be a critical part of a stable liberal order. And our emancipation from the past has severed us from the world we are creating. Traditions, as Burke described them, create “a partnership” not only among the living, but also among “those who are dead, and those who are to be born.” For this reason, Burke concluded that a people “who never look backward to their ancestors . . . will not look forward to posterity.”
How ironic, then, that Chief Justice Roberts would invoke Burke in his June Medical opinion, a case that, in striking down restrictions on abortion clinics, reaffirmed the Roe line of cases creating a constitutional right to abortion—in other words, the right to be emancipated from one’s posterity. June Medical is wrong, not because it got stare decisis wrong (as DeGirolami alleges), but because it got the meaning of tradition—and the meaning of personhood—wrong.
None of this is to say that DeGirolami’s effort is not worthwhile. But it does seem out of tenor with our current predicament. The task for a traditionalist is not to find a place for originalism and stare decisis in the American legal landscape, but rather to find a place for tradition in a political and legal culture that exalts emancipation as the highest good.
Faced with this task, DeGirolami may find that preserving the American tradition does not simply mean picking up a legal thread. It may, instead, mean picking up the needle and starting a new one.