Originalism, Precedent, And Judicial Restraint. (Twenty-Ninth Annual Federalist Society National Student Symposium: Originalism‪)‬

There are, in theory, ways of reconciling originalism and respect for precedent. But, in practice, these approaches have not been consistently adopted by the Roberts Court. Justice Antonin Scalia has described Chief Justice Roberts's attitude toward precedent as "fanx judicial restraint"--a kind of "judicial obfuscation" that should discomfit originalists and nonoriginalists alike. (1) And from the other side of the Court, Justice Stephen Breyer has been similarly critical of the Chief Justice's approach to precedent. (2) If the Chief Justice is to succeed in his admirable goal of persuading his colleagues to converge around narrow, unanimous opinions that the country can accept as legitimate, (3) he will need to characterize precedents in terms that his colleagues regardless of ideology can accept as neutral and transparent. Courts do not overturn constitutional precedents very often. The Marshall Court did not overturn a single constitutional precedent. (4) The Taney Court overturned only one. (5) The Hughes Court, during the New Deal era, overturned twenty-five. (6) The Warren Court, which is often viewed as a bogeyman in its attitude toward precedents, overturned thirty-two--the most up to that time. (7) But that was nothing compared to the record of the Burger Court, which overruled no fewer than seventy-six precedents. (8) The Rehnquist Court overturned thirty-nine precedents, a handful more than the Warren Court. (9)