Originalists can and do support Brown v. Board, and it's important to understand why.
Yesterday the Supreme Court heard an important case, Gamble v. United States, on the Double Jeopardy Clause. The question presented is whether successive prosecutions by state and federal governments for the same offense violate the Clause. The decision will be as salient for constitutional methodology as it is for the relatively few defendants it will affect.
The attorney for the defendant in this case presented substantial evidence that at the time of the enactment of the Constitution, double jeopardy in English law was understood to bar successive prosecutions by England and a foreign government. That history provided the best window into the scope of double jeopardy and sovereignty in 1789 and ruled out prosecution by different sovereigns. Indeed, a fortiori, the Clause, he contended, should bar successive prosecutions by the state and federal government, because the dangers of collusion are even greater between these sister actors.
For the purposes of this post, let’s assume that the defendant has the better of the historical argument. That seemed to be the assumption of most of the justices. The obstacle to his winning is a series of cases that have held the Double Jeopardy Clause does not bar prosecution by both the state and federal government, precisely because they are separate sovereigns. The question therefore is what weight should be given to precedent when it conflicts with a better understanding of the original meaning of the Clause.
Unfortunately, Justice Kavanaugh seemed to suggest that a venerable rule in case law should be overruled only if it were “grievously wrong.” That seems to me to be itself a grievously wrong standard. First of all, it’s not clear it is a rule. “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.
Perhaps a more charitable reading is that Kavanaugh believes that a decision should be retained as long as it is not rooted in a grievously wrong interpretation of the original meaning. But that is not a good rule either. To be sure, if prior Supreme Courts have reviewed and substantially considered the same evidence relevant to the original meaning and made a good faith effort to apply that meaning, the Court might well adhere to precedent. There is then little reason to believe that the contemporary Court is more likely to come to the right interpretation. But in this case, only one prior decision mentioned the relevant English law and it dismissed the evidence in a conclusory footnote. If a rule barring successive prosecutions by separate sovereigns captures the better meaning– certainly if it is better by clear and convincing evidence– retaining the old rule requires countervailing considerations to support that position.
Kavanaugh suggests that the stability is that countervailing consideration. But if one believes, as Mike Rappaport and I have argued, that the original meaning is likely to have better consequences than the alternatives, it is good consequentially to encourage challenges to decisions that are not rooted in the original meaning. The abstraction of stability should not defeat the concrete benefits of a likely better rule.
Nevertheless more specific considerations in favor of a past decision may have greater weight, defeating the likely beneficence of the new rule. For instance, if the entire government has grown to operate under the old rule, as it may have under the too expansive view of the Commerce Clause initiated by the New Deal Court, the enormous costs of discarding it may offer a reason to maintain the overly expansive view. But the government has not changed its operations in any substantial way because of the separate sovereigns’ interpretation of the Double Jeopardy Clause. Its disappearance would hardly be noticed.
Justice Neil Gorsuch, in contrast, happily seemed to favor following the original meaning even at the expense of the Double Jeopardy Clause precedents. In just two months, the two Trump justices, Gorsuch and Kavanaugh, seem to be diverging on essential questions for modern originalism. There may be no single model of a “Trump judge” after all!