Would it not be fair to say that an Originalist would be for Stare Decisis?
Probably not a GQ but rather a GD. But here’s my two cents.
Originalism means you want to interpret a constitutional or statutory text in accordance with the meaning of the words as commonly used at the time of the drafting of the text and the intentions of the drafters. Stare decisis means you follow the interpretation of the text as interpreted in previous cases where it had to be interpreted. So it’s not difficult to imagine a conflict between originalism and stare decisis, where previous precedents themselves deviated from the (perceived) meaning of the words of the text and the (presumed) intentions of the drafters.
Griswold v Connecticut is an example for this conflict. An originalist might disagree with that ruling with the argument that, presumably, there is no basis for a right to privacy in the text of the constitution and no evidence for an intention of the drafters of the constitution to establish one. Yet, Griswold is still a ruling that has not been overruled, so stare decisis speaks in favour of following it in future cases.
Judge Barrett appears to selectively choose when she’s for Stare Decisis but insists shes like Scalia who claims to be an Originalist.
Since this seems to be a question based on a current political situation, let’s move it to Politics and Elections.
Colibri
General Questions Moderator
Ted Cruz claims to be an originalist except when he wants to run for President.
Stare Decisis can theoretically fly in direct opposition to Originalism; that’s why the two aren’t the same.
Say you have a constitution that says “Everyone shall be allowed to own guns, no exceptions.” And then in comes a court decision that says “Only those 35 years or older shall be allowed to own firearms.”
Originalism would mean striking down that court decision, since it’s unconstitutional. Stare decisis would mean upholding that court decision in all future judgments, since you want an existing court decision to persist on and on.
IANAL, but to my understanding the short answer (mainly based on reading this helpful article recently) would be yes. American law and even the constitution is underpinned by common law which places judicial consensus as the highest form of law. The tricky part is that applying precedent itself is something that is open to interpretation, and stare decisis isn’t absolute under common law - if consensus among judges shifts then the practical implications of the law shift by definition.
US federal law says that federal judges may not make up a new law (although that can happen in some cases on the state level), but their power to interpret the law is very broad as long as they can provide some power the constitution gives to the federal government. For example, the 9th amendment allows human rights to be subject to judicial interpretation on the federal level without any specific law acknowledging the right (and sorry but I haven’t kept up with the GD thread on this).
I think it is true that if you don’t believe judges have broad power to interpret the law and set precedent, you’re not really an originalist. The reality is that US law will always be murky and allow for wiggle room. However, that also means that the constitution allows for legal interpretations to change. Somewhat paradoxically, if 5 SCOTUS justices believe that stare decisis and common law are irrelevant, they’re right! Because of common law itself.
I suspect where the OP is going is that originalism and stare decisis are both fundamentally conservative (not in a political sense) ways to interpret the law, even though they may run afoul of each other on occasion.
This is in contrast to a more… interpretative(?) approach, where justices try and determine how the law might apply in the present day. Which is generally what people are screeching about when you hear the term “activist judges”, because they see it as not interpreting the existing law (stare decisis), nor do they see it as trying to deduce the intent of the writers of the Constitution and its amendments (originalism). They see it as more of an attempt to interpret the law according to an agenda.
Well, of course, Scalia was the same. Happy to apply whatever standard allowed him to reach his desired result.
For the life of me, I can’t imagine why Dems seem willing to accept the characterization of Scalia as some paragon of judging.
Also, I’ve never heard an “originalist” explain how their view fits w/ Article 3 and the 9th Amendment.
That should be Art 1 sec 8.
Scalia on the 9th amendment “All they meant by it was: I do not deny or disparage the right to abortion, for example. I know that it’s not one of the rights protected by the Bill of Rights but I don’t deny or disparage it. If people want to argue there is a natural right of a woman to have an abortion, that’s fine. The mere fact that its not included in the Bill of Rights doesn’t mean that it doesn’t exist. But just don’t ask me to enforce it.”
Do you consider this sophistry sincere? Persuasive? Evidence of a “great legal mind”? Did Scalia apply this approach consistently across all issues?
Yes to all