During his 2018 confirmation hearing, Justice Brett Kavanaugh correctly explained where the duty to follow judicial precedent comes from:
Precedent is not just a judicial policy. Precedent comes right from Article III of the Constitution. Article III refers to the “judicial power.” What does that mean? Precedent is rooted right into the Constitution itself….As I see it, the system of precedent comes from Article III itself. When Article III refers to the judicial power shall be vested in one Supreme Court and such inferior courts as Congress shall, from time to time, establish, to my mind, the phrase judicial power […] what does that entail? […] You look at the meaning—the meaning at the time of judicial power—and you look…one source of that is Federalist 78. It’s well explained that judges make decisions based on precedent, and precedent, therefore, has constitutional origins and constitutional basis in the text of the Constitution.
So let’s consider Federalist 78. Here’s what Hamilton wrote there:
To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges.
That last sentence shows Hamilton was speaking about following previous interpretations of “the laws,” without referring to or singling out the Constitution. It is very possible that Hamilton was focused in Federalist 78 exclusively on statutes, because elsewhere (e.g. in Federalist 80) Hamilton contrasted the laws with the Constitution, when he asked “What equitable causes can grow out of the Constitution and laws of the United States?“ See also Federalist 82: “wherever there is an evident opposition, the laws ought to give place to the Constitution.”
Even putting aside Hamilton’s position on the necessity of following statutory or constitutional precedents, the founders were unanimously clear about constitutional stare decisis in the text of the Constitution itself. An ancient rule for reading legal texts is the Harmonious-Reading Canon, which says that the clauses in a legal text should be interpreted in a way that renders them compatible, not contradictory. Justice Kavanaugh was correct that the duty to follow precedents comes from the Judicial Vesting Clause in Article III, Section I. But that clause should not be interpreted in a way that conflicts with any other clause. For example, if a non-originalist Supreme Court erroneously interprets the word “press” in the First Amendment to ensure a right to go to the gym and bench “press” during a pandemic, but subsequently the Court realizes its mistaken interpretation of the word “press,” then the Court is obligated to adhere to the true meaning of the First Amendment. Otherwise, they would be inflating the judicial power in a way that conflicts with the First Amendment. This is why I believe the Court was entirely correct in Smith v. Allwright, 321 U.S. 649 (1944):
[W]e are not unmindful of the desirability of continuity of decision in constitutional questions. However, when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. This has long been accepted practice, and this practice has continued to this day.
Too bad the Court has seen fit to backtrack from this core principle. The Court has cited various policy reasons for doing so, but they cannot defeat the constitutional command that relies upon the Harmonious-Reading Canon. Moreover, those policy reasons are flawed, because the greatest policy danger is that the Court (or some of its members) will be tempted toward casual misinterpretations of the Constitution in the belief that they will be protected in perpetuity by stare decisis. In the field of constitutional law, where the doctrine of precedent is weak, the necessity of binding down judges can only be accomplished via originalism, and so the argument for applying originalism in constitutional interpretation is even greater than the already-strong case for doing so in statutory interpretation.
NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.