Amy Coney Barrett, Constitutional Precedent, and the Problem of Originalism

Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy – Public Domain

Supreme Court Justice nominee Amy Coney Barrett is a threat to many constitutional precedents, including Roe v. Wade (abortion rights), National Federation of Business v. Sebelius, (Obamacare), and Obergefell v. Hodges (marriage equality).  It may not simply be her ideology or pre-judged opinions that pose the problem, it is her constitutional interpretive method of Originalism that is the issue.

The foundation of the US legal system is strongly based on the concept of legal precedent.  Judges when interpreting the law or the Constitution are supposed to respect past decisions when there are similar facts.  “Like cases are to be the same” is the rule.  Respect for legal precedent is founded on the idea of stability, consistently, and the belief that people have relied on the law to operate in a certain way and it should not change unexpectedly.

Departure from precedent is supposed to be an exception and not a rule.  When it comes to constitutional precedent, the Supreme Court has only reversed itself 147 times in history.  Historically the justification for reversing constitution precedent was that the prior decision  proved no longer to be workable or that  the conditions under which it was decided had so changed that the factual basis for it had been undermined.  Precedent could also be rejected if new facts pointed to the lack of viability of the old decision.  Deference to constitutional precedent historically was firm even though the Court has said it should not be given as much respect for statutory precedent because the latter would be easier for Congress to overturn or overturn if the Court made a mistake.

Up until the Warren court of the 1950s and 1960s, rarely were past constitutional law decisions by the Supreme Court reversed by a later decision.  From 1788 until 1953 there were a total of 49 reversals.  Since 1953, 98 reversals, with 76 coming since Richard Nixon sought to push the Court ideologically in a conservative direction.  The big change came in 1986 when William Rehnquist became Chief Justice and Antonin Scalia an Associate Justice.

Scalia especially brought to the Court his theory of constitutional interpretation called Originalism.  This theory said that in order to limit the discretion of judges in making policy or substituting their own opinions for that of elected officials, they should interpret the Constitution in terms of the intent of the Framers.  Intent could be ascertained by looking at the plain language of Constitution and dictionary definitions of terms used in it by the Framers at the time they wrote.  Historical documents, such as the Federalist Papers, could also be deployed.  For Justices such as Scalia, Originalism guaranteed the Constitution and Bill of  Rights had their meanings anchored in time, providing stability and certainty.

While elegant in theory, in practice Originalism is flawed in  many ways.  It assumes the Framers were of one mind when they drafted the Constitution.  It naively believes that one can reconstruct the past accurately to ascertain historical intentions and apply them to a world they could not envision.  It falsely assumes a theory of history no longer accepted by historians that one can simply recount the past by “telling it like it was.”  It overlooks that many of the Framers were slaveholders and the original document embodied beliefs and assumptions most of us now reject. But the major problem is that Originalism  does two damaging things:  One it ignores rights.  Two, it threatens constitutional precedent.

Antonin Scalia’s Originalism was not politically neutral.  Scalia was conservative, everyone knew that.  In my books and many articles on him I demonstrated a pattern to his decisions based on the issue or the litigant.  Others who study the Court and Justices have shown that too.  One theory is that Originalism is simply a tool to mask or justify conservative outcomes. But alternatively, Originalism locks the Constitution in time to 1787 when it was drafted. This was a time when, as former Justice Thurgood Marshall once said, the first three words of the Constitution “We the people” excluded women, people of color, the poor, and those who were not Protestant.  The concept of rights and who had a  voice in the American republic has evolved.  Originalism ignores this.  It freezes rights in time, ignoring  how,  to paraphrase what the Supreme Court once said in Trop v Dulles that the law’s meaning must be looked at through the “evolving standards of decency that mark the progress of a maturing society.”  Originalism ignores this evolving decency, how our conception of what free speech, privacy, or  equality means have evolved over time, and what it means to be a democratic republic.   When Originalism confronts modern rights, the latter generally lose.

But an equally fatal defect of Originalism is found in how it fails to understand the role of precedent in the law.  There may be an original Constitution that had some meaning, but over time  it has been interpreted, creating precedents to guide judicial reasoning.  The meaning of the Constitution and the Bill of Rights includes these precedents.  Since the 1980s, and especially now under the Roberts Court, the Originalists, including Justices Thomas and Alito as seen recently in a case where they expressed disagreement with the way Obergefell was decided, have  expanded the grounds for the overrule of precedent.  They repeatedly quote the phrase “precedent is not an inexorable command” and that if a decision were simply wrong or badly  or insufficiently reasoned, that is grounds to overrule it.  Originalism ignores how the law evolves and grows, and it runs roughshod on the settled expectations of what the law has come to mean.  It rips the law out of its contemporary context and meaning.

Amy Coney Barrett is an Originalist, a student of Scalia.  No matter what assurances she gave to the Senate about remaining open-minded to precedents,  either her past comments on the law, her legal opinions in cases, her ideology, or her interpretive method question her fidelity to precedent. Like her mentor she argued in a 2013 Texas Law Review Article that precedent need not always be followed and in her list of “superprecedents”—supposedly cases that could never be overruled—she excluded Roe v. Wade.  By her own analysis respect for precedent is a self-imposed restraint on the Court, not something they have to necessarily follow, and her Originalism, like that of her mentor Scalia, is either a façade for her political views or a method inherently hostile to rights.

David Schultz is a professor of political science at Hamline University. He is the author of Presidential Swing States:  Why Only Ten Matter.