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  • Stare Decisis for Originalist Judges – Randy E. Barnett
    Stare decisis is the doctrine that a court should rule the way a previous court ruled even when the judges of the second court disagree with the earlier ruling This doctrine poses an obvious problem for an originalist judge or justice If a previous judicial decision reached an outcome contrary to what the original meaning of the Constitution requires, the originalist judge or justice is
  • Integrating Originalism and Stare Decisis – Marc O. DeGirolami
    It would prize stare decisis especially, as Justice Thomas recognized in his Mesa concurrence, when the historical sweep of judicial precedents is connected—moored, as it were—to political and cultural practices of similar age and endurance
  • The Truth About Stare Decisis – Andy Smarick
    Stare decisis is a conservative principle—conservative in the sense of prizing continuity and predictability and preferring incremental to dramatic change
  • How Janus Weakens Stare Decisis - lawliberty. org
    Stare decisis has in the past been a notoriously pliable doctrine on the Court, but insofar as one can discern its shape, it comes in two versions—weak and strong The strong version begins with a strong presumption in favor of sticking with the holding of any case previously decided by the Court
  • Why Justice Thomas Is Wrong about Precedent - Law Liberty
    This term Justice Clarence Thomas wrote an important concurring opinion on stare decisis in Gamble v United States, the case on the scope of double jeopardy There Thomas rejects stare decisis for both constitutional and statutory cases except in cases where the precedent is not “demonstrably erroneous ” Thomas recognizes that judges in England at the time of the Constitution applied a
  • Roberts and Thomas Battle Over Burke – John O. McGinnis
    John O McGinnis explains the different views of stare decisis held by John Roberts and Clarence Thomas as revealed in June Medical and Seila Law v CFPB
  • Is Justice Kavanaugh Grievously Wrong on Stare Decisis?
    I agree that with Kavanaugh that Constitution contemplates stare decisis, but there is no evidence that it contemplates that standard Perhaps a more charitable reading is that Kavanaugh believes that a decision should be retained as long as it is not rooted in a grievously wrong interpretation of the original meaning
  • One moment, please. . . - Law Liberty
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  • Traditional Precedent Rules Do Not Restrain Judicial Activism
    And most pragmatic rules of stare decisis give weight to the reliance interest of individuals As a result stare decisis will tend to protect past decisions that protect individual rights rather than those that empower democratic legislatures Precedent rules are not neutral between judicial activism and judicial restraint
  • Randy E. Barnett, Author at Law Liberty
    Without an imperative to bring precedents into alignment with original meaning, stare decisis becomes the “exception” that swallows the Constitution





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