The Conservative Case for Precedent‪.‬

This Essay offers some reasons why conservatives should favor giving great weight to precedent in constitutional adjudication. Let me start with some preliminary observations about the debate between originalism and precedent more generally. First, the debate has been dominated to far too great an extent by specific cases, Roe v. Wade (1) in particular. It is distressing that the only issue that has seemed to matter in recent confirmation hearings is what a nominee thinks about Roe v. Wade. Similarly, in the precedent versus originalism debate, much of the discussion--even in the law reviews--is animated by what commentators think about Roe v. Wade. So, if you think Roe v. Wade was an illegitimate usurpation of power by the judiciary, and you want to overrule it, it somehow follows that you think all constitutional law should be based on something other than precedent. On the other hand, if you like Roe v. Wade, and you want to reaffirm it, somehow all precedent must be a good thing. This is an extraordinarily myopic way of thinking about the problem. Those who regard themselves as conservatives and embrace some of the values that David Strauss mentions--the rule of law, stability and predictability in the law, judicial restraint, the belief that social policy decisions should be made by elected representatives of the people rather than by the judges (2)--should not have their views on precedent versus originalism driven by one case.