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Originalism and Stare Decisis
Notre Dame Law Review
  • Amy Coney Barrett, Notre Dame Law School
The question whether stare decisis is compatible with originalism has occupied both originalists and their critics. In this Essay, I explore what light Justice Scalia’s approach to precedent casts on that question. I argue that while he did treat stare decisis as a pragmatic exception to originalism, that exception was not nearly so gaping as his “fainthearted” quip suggests. In fact, a survey of his opinions regarding precedent suggests new lines of inquiry for originalists grappling with the role of stare decisis in constitutional adjudication.
Publication Date
Citation Information
92 Notre Dame L. Rev. 1921 (2017)