Scalia Failed to Create a Rule of Law for Precedent

My co-blogger, Mike Rappaport, has opened up a discussion about the flaws of Justice Scalia’s jurisprudence.  I think this is an important subject. Despite his mistakes, Justice Scalia was a great justice. But precisely because of his greatness, his errors, unless noted and analyzed, may hold back progress in the jurisprudential theories he championed.

In constitutional law, I think Justice Scalia’s greatest systematic mistake was his treatment of precedent. One of his most famous statements on the  original meaning of the Constitution was one in which he argued for following precedent:  “I am an originalist, not a nut.”  Unfortunately, his argument for precedent here does not seemed to be based on the Constitution itself, or tied to any rule.  It is merely a maxim of prudence. Overruling some cases could be too disruptive to entertain.

And to my knowledge, he never provided any further analysis of how to tell us when cases were too disruptive to be overruled and when they were not, let alone whether this was a sensible rule for evaluating precedent, even if it should be thought of as a rule.  As a result, he is open to the criticism that he picked and choose among precedents he liked (or at least could live with) and those he hated.

Thus, for instance, he would never acquiesce in the fundamental right cases, like Roe, but he was willing to follow and perhaps even extend cases, like Wickard v. Filburn.  It cannot even be said that his distinction in applying precedents was between cases about rights and cases about structure, because he seemed far more hostile to precedents restricting the unitary executive than those expanding federal power.

Scalia is also famous for saying that the rule of laws is the law of rules.  Particularly, because much of constitutional law revolves around the question of whether precedent should be overruled, that judgement needs to made as rule-like as possible. And not any rules will do: they must be consistent with originalism and ideally advance its practice.

Michael Rappaport and I have argued that following precedent is consistent with originalism. But we have also argued that the optimal rules should provide only a limited respect for precedent, if originalism is to be given its proper generative force. Whether we are right or not, one of the key questions for post-Scalia originalists is to consider precedent rules. Only though such a research project are we going to fully connect up two of Justice’s Scalia’s great projects—originalism and a law of rules.

Reader Discussion

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on October 12, 2016 at 17:16:15 pm

Maybe, he thought it would be too difficult to separate the wheat from the chaff!

On a more serious note, what do you think of Justice Thomas occasional comments on reconsidering certain precedents?

Is there something to this?

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on October 13, 2016 at 01:57:17 am

I was present when Justice made the "nut" statement in a speech at the National Convention of the Federalist Society. Got it on tape. See https://www.youtube.com/watch?v=DAxs44lDc4g

There is a difference between "binding" stare decisis and "persuasive". The first is unconstitutional, or at least tends to become unconstitutional. See http://constitution.org/col/0610staredrift.htm It is not a rule of construction, but entirely prudential, a way for judges to avoid sensitive issues. My rule is stick to the Constitution and
"Fiat iustitia ruat cœlum". Let justice be done though the heavens fall! — Lord Mansfield, from ancient maxim.

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Jon Roland
on November 09, 2018 at 09:28:16 am

[…] may be largely one of degree—they are less willing to overrule precedent than he was, although, as I have noted before, one important criticism of the late Justice is that he did not have a consistent theory of when to […]

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Which Justices are Originalists?

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