Two Questions for Judge Barrett About Stare Decisis
Judge Barrett, in a 2013 Texas Law Review article defending what you call the Supreme Court’s “weak presumption of stare decisis in constitutional cases,” you wrote the following:
Justifying an initial opinion requires reason giving, particularly if the majority is challenged by a dissent. Justifying a decision to overrule precedent, however, requires both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal. The need to take account of reliance interests forces a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps. Stare decisis protects reliance interests by putting newly ascendant coalitions at an institutional disadvantage. It doesn’t prohibit them from rejecting a predecessor majority’s methodological approach in favor of their own, but it makes it more difficult for them to do so.
At first reading, your views seem well within the mainstream of American legal thought. An erroneous decision should
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