The Conservative Case for Precedent
Merrill, Thomas W., Harvard Journal of Law & Public Policy
This Essay offers some reasons why conservatives should favor giving great weight to precedent in constitutional adjudication. Let me start with some preliminary observations about the debate between originalism and precedent more generally.
First, the debate has been dominated to far too great an extent by specific cases, Roe v. Wade (1) in particular. It is distressing that the only issue that has seemed to matter in recent confirmation hearings is what a nominee thinks about Roe v. Wade. Similarly, in the precedent versus originalism debate, much of the discussion--even in the law reviews--is animated by what commentators think about Roe v. Wade. So, if you think Roe v. Wade was an illegitimate usurpation of power by the judiciary, and you want to overrule it, it somehow follows that you think all constitutional law should be based on something other than precedent. On the other hand, if you like Roe v. Wade, and you want to reaffirm it, somehow all precedent must be a good thing. This is an extraordinarily myopic way of thinking about the problem. Those who regard themselves as conservatives and embrace some of the values that David Strauss mentions--the rule of law, stability and predictability in the law, judicial restraint, the belief that social policy decisions should be made by elected representatives of the people rather than by the judges (2)--should not have their views on precedent versus originalism driven by one case.
Second, we cannot resolve the debate by adopting the conceptual apparatus of one school or the other, and by pointing out that the rival approach has no place within the conceptual apparatus we adopt. To a large extent, originalism and precedent reside in parallel universes that do not intersect. The case for originalism starts with legal positivism, the idea that only enacted law is the law of the land. (3) Starting from this assumption, it follows that when there is an ambiguity in the law, we should try to resolve it by determining the meaning of the lawgiver. Such an approach naturally leads to looking at original sources for interpreting the law. As Steven Calabresi implicitly frames the question, "Does originalism say that precedent can trump the enacted law?" (4) The answer, of course, is "No, it does not." If we start from originalist premises, we do not leave much room for precedent or stare decisis.
Conversely, if one starts from the universe of precedent, that universe is founded in the Holmesian observation that the law is, ultimately, the judgments of the courts. (5) If you adopt this perspective, you say, "Well, what predicts the judgments of courts is the precedents of courts, and therefore precedent is law." So, if we want to know whether or not following precedent is permissible, we find the answer by looking to precedent. And guess what we find? Judges say we ought to follow precedent. So precedent it is. This universe does not leave much space for the Constitution and enacted law. Thus, we have two parallel universes that operate on different planes: the universe of enacted law, and the universe of judge-made law. One cannot reason from the premises of one to oust the other.
The reality is that every Justice, at least since the days of the Marshall Court, has relied to some extent on both originalist reasoning and precedent. Professor Calabresi is absolutely correct that when moments of high drama and crisis arise, the Justices tend to revert to the constitutional text and to the statements of the Framers. (6) On the other hand, studies of the Justices have indicated that approximately eighty percent or more of the authorities they cite in their constitutional opinions are precedents of the Supreme Court. (7) The most careful study examined the opinions of Justices Rehnquist and Brennan, who were the prototypical ideological outliers at the time the study was conducted. (8) Presumably, centrist judges rely on precedent to an even greater extent. …