Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
Randy Barnett recently had a great line on Twitter (link no longer available) accusing an interlocutor of advocating “the judicial supremacy of dead justices.” The description wasn’t accurate, in my view, and wasn’t a very substantive answer to the question by Adam White that prompted it. But it’s on Twitter, so we can lighten up some. And it’s a great zap-line. Is anyone really in favor of “the judicial supremacy of dead justices”?
As it happens, that would be a fair way of characterizing the views of anyone who is both a judicial supremacist and also supports a rigid form of stare decisis. For the judicial supremacist, the Constitution means for everyone whatever the Supreme Court says it means. And for the adherent to a rigid form of stare decisis, Supreme Court decisions about the Constitution are rarely to be overruled. Put the two together and you have “the judicial supremacy of dead justices.”
The two ideas don’t have to go together. One version of judicial supremacy would make stare decisis unnecessary. If the Constitution means whatever the Supreme Court says it means, then the Constitution means what the Supreme Court says. Having authoritatively said once what the Constitution means, there is no standard external to what the Supreme Court said to later show the Court to have been wrong earlier. But nobody really believes that, do they?
Here’s where one form of living constitutionalism might creep in. If the Constitution changes without formal amendments, then it’s possible that an earlier decision was right when decided but should nevertheless be overruled later on because the Constitution “evolved” in the interim. But nobody really seems to argue that way either, at least in court. It’s still too weird (thank goodness) for lawyers to make an explicit argument of this sort to tribunals that are supposed to discover rather than invent the law.
Reasoning aimed at overturning an erroneous precedent is usually trained instead on showing that the earlier decision was wrong the day it was decided. When successful, this results in decisions that renounce the judicial supremacy of dead (and sometimes living) justices.
Wouldn’t it be nice if we had a clean way to talk about and think about judge-made constitutional law that is subject to being overruled without formal amendment but that nonetheless remains binding on lower-court judges and must be reckoned with by anyone who might end up in court? Wouldn’t it be helpful to recognize just how different that law is from the law of the Constitution itself? It is questions like these that led me to write Judicial Departmentalism: An Introduction. (Draft is posted to SSRN; final version still being edited, forthcoming next year in the William & Mary Law Review issue for a symposium held earlier this year.)
The basic idea behind judicial departmentalism is that judicial resolutions give rise to a kind of law that binds within the judicial department but no further. The three ways judicial resolutions do this are through the law of judgments, the law of remedies, and the law of precedent. That’s it. Each of those bodies of law includes limits on its reach. Judgments typically bind only the parties; injunctions extend only to specific actors; and stare decisis governs only within the judiciary, for example.
Within the judicial department, this law is powerful. And by virtue of the many ways in which matters can be brought within the judicial domain, this law projects outward as a practical matter. But those not legally bound by this law (by virtue of a judgment, or a remedy, or stare decisis) violate no legal obligation in recognizing and acting as if they are not legally bound by it. After all, they aren’t.
Pretty neat, huh? Is it right?