Superficially, Bostock may seem like a triumph for textualism. It wasn’t. Rather, Justice Gorsuch built a textualist edifice on top of non-textualist precedents from decades ago. His understanding of Title VII was governed by Justice Brennan’s plurality decision in Price Waterhouse v. Hopkins (1989). Randy Barnett and I called this approach “halfway textualism.” Going forward, judges should reconsider the relationship between textualism and statutory stare decisis: to what extent is a textualist analysis governed by precedents that disregarded textualism. Alas, Justice Gorsuch completely missed this issue.
Judges should also consider a closely related issue: the relationship between originalism and constitutional stare decisis. For argument’s sake, I’ll assume that statutory stare decisis differs from constitutional stare decisis. In theory, at least, if the Supreme Court interprets Title VII incorrectly, then Congress can amend the statute. (Congress revised Title VII in response to Justice Brennan’s Price Waterhouse plurality). In contrast, amending the Constitution is much more difficult. Justice Thomas sees no reason to follow constitutional stare decisis. But he is alone on the Court.
As a result, the Justices are constantly binding themselves to precedent, even where that precedent is utterly inconsistent with the original meaning of the Constitution–and even where those later-in-time precedents reversed earlier, better decisions!
Let’s consider a straightforward example. In Wolf v. Colorado (1949), the Supreme Court held that the states were not bound by the so-called exclusionary rule. Twelve years later, Mapp v. Ohio (1961) reversed Weeks. Now the states were bound by the exclusionary rule. What should a future Court do? Stand by the decision of the Vinson Court in Wolf? Or stand by the precedent of the Warren Court in Mapp? With halfway stare decisis means, you stand by the latter precedent, even if the former precedent was correct as an original matter.
Consider another example where the Court sets a new precedent. Griswold v. Connecticut (1965) held that the Constitution protects a right to privacy, and Connecticut’s prohibition on married couples using birth control was unconstitutional. The ruling was based on a bizarre analysis of penumbras and emanations from the Bill of Rights:
“Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” An “emanation” refers to a ray of light. During a lunar eclipse, the “umbra” refers to the darkest part of the shadow formed when the Earth orbits between the sun and the moon. The “penumbra” refers to the lighter part of the shadow, where some of the “emanations” from the sun are visible.
I don’t think anyone will defend its reasoning today.
Griswold did not overrule any precedents, though it was flatly inconsistent with Footnote Four of Carolene Products. In time, Griswold begat Eisenstadt v. Baird, which begat Roe v. Wade, which begat Casey, which begat Whole Woman’s Health, which begat June Medical, and so on. But the root of that doctrine is an indefensible decision. Yet, we are forever bound by the excesses of the Warren Court, because they were the first movers.
Adrian Vermeule describes this dynamic well:
If the very first decision freezes the law forever, obliging all subsequent Justices to put aside their disagreements permanently in the name of stare decisis, then the “bank and capital of nations and of ages” shrinks radically. The only depositors to the bank will be the Justices in the initial majority, which means in practice that a majority of only one or two will frequently determine the law forevermore.
On the Roberts Court, Stare Decisis is an old Latin phrase that means “Let the Decisions of the Warren Court Stand.”
Vermeule writes further:
From a Burkean standpoint, it is breathtaking epistemological arrogance to think that one or two Justices, deciding at a single time under conditions of sharply limited information, should be able to determine the permanent course of the law.
Forevermore, we are governed by the dead hands of William O. Douglas and William Brennan. (Forget the dead hands of Madison and Hamilton–those hands are too dead!)
But the effect of the Chief’s approach is to require Burkean Justices to conform to the initial, maximally arrogant decision; conversely, more information would be contributed to the stock of epistemic capital if later Justices treated the second or subsequent case as one of first impression. The self-undermining approach of the Chief’s concurrence, then, actually embodies a kind of judicial hubris cloaked in the garb of humility. (I will leave it to other commentators to speculate about why a veneer of humility seems so often to appeal to the Chief Justice).
In short, the Chief’s judicial humility requires standing by decisions that he thinks lack humility. But only some of those decisions. Roberts will stand by Planned Parenthood v. Casey, but will not stand by Whole Woman’s Health. In the future, I suspect he will stand by Grutter v. Bollinger, but will not stand by Fisher v. University of Texas, Austin II. And so on.
We should acknowledge the contradiction of halfway stare decisis.