Please update your browser

You're using a version of Internet Explorer that isn't supported by Questia.
To get a better experience, go to one of these sites and get the latest
version of your preferred browser:

Originalism, Precedent, and Judicial Restraint

By Rosen, Jeffrey | Harvard Journal of Law & Public Policy, Winter 2011 | Go to article overview

Originalism, Precedent, and Judicial Restraint


Rosen, Jeffrey, Harvard Journal of Law & Public Policy


There are, in theory, ways of reconciling originalism and respect for precedent. But, in practice, these approaches have not been consistently adopted by the Roberts Court. Justice Antonin Scalia has described Chief Justice Roberts's attitude toward precedent as "fanx judicial restraint"--a kind of "judicial obfuscation" that should discomfit originalists and nonoriginalists alike. (1) And from the other side of the Court, Justice Stephen Breyer has been similarly critical of the Chief Justice's approach to precedent. (2) If the Chief Justice is to succeed in his admirable goal of persuading his colleagues to converge around narrow, unanimous opinions that the country can accept as legitimate, (3) he will need to characterize precedents in terms that his colleagues regardless of ideology can accept as neutral and transparent.

Courts do not overturn constitutional precedents very often. The Marshall Court did not overturn a single constitutional precedent. (4) The Taney Court overturned only one. (5) The Hughes Court, during the New Deal era, overturned twenty-five. (6) The Warren Court, which is often viewed as a bogeyman in its attitude toward precedents, overturned thirty-two--the most up to that time. (7) But that was nothing compared to the record of the Burger Court, which overruled no fewer than seventy-six precedents. (8) The Rehnquist Court overturned thirty-nine precedents, a handful more than the Warren Court. (9)

What is the Roberts Court's attitude toward precedent? There are two unapologetic originalists on the Roberts Court: Justices Scalia and Thomas. Their approaches to precedents will not gladden the hearts of all members of the Federalist Society. Some originalists, like Professors Gary Lawson and Randy Barnett, argue that it is unconstitutional for the Supreme Court to follow a precedent that deviates from the original meaning of the constitutional text, period. (10) That is a principled position on steroids. But even Justice Scalia does not embrace this position. He calls himself a fainthearted originalist because he would sometimes allow judicial precedent or societal custom to trump the original meaning of the Constitution. (11) Justice Scalia distinguishes himself from Justice Thomas in this regard. According to Justice Scalia, Justice Thomas would overrule any precedent that is inconsistent with the Constitution's original meaning but he himself would not. (12) Chief Justice Roberts rejects both positions. In his confirmation hearings, the Chief Justice said he cares more about precedent than original meaning, describing himself not as an originalist but as a bottom-up rather than a top-down judge. (13) He suggested that bottom-up judging includes respect for stare decisis, and he famously likened himself to an umpire. (14)

I am especially interested in Chief Justice Roberts's vision of precedent, as I had the fortunate opportunity to interview him at the end of his first term. (15) During the interview, Chief Justice Roberts expressed frustration that his colleagues were acting more like law professors than members of a collegial court. He said that serving on the Court should not be an academic exercise, and that, in this polarized age, it was important for the country that the Court converge around narrow, unanimous opinions. (16) He also said that he would try to persuade his colleagues to embrace narrow, minimalist opinions rather than five-to-four, ideologically polarized opinions. (17)

I was very impressed with Chief Justice Roberts and his vision of a more collegial Court. I also was distressed to see that in the Term following our discussion, the 2007 Term, thirty-three percent of the Court's decisions were five-to-four (18)--the highest percentage in ten years. Some of these decisions generated criticism from both liberal and conservative Justices for mischaracterizing contrary precedents rather than admitting that the Court was effectively overruling them.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Originalism, Precedent, and Judicial Restraint
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.