The fifth in Balkin’s recent series of posts on constitutional theory is entitled My Advice to Judges (for What it’s Worth). Here’s a taste, the seventh of ten principles that Balkin enumerates:
When in the exercise of your best judgment, doctrinal encrustations and elaborations no longer adequately serve text and principle, or now conflict with them, you should overrule them and create new doctrinal solutions to implement text and principle. Once again be guided by the notion that doctrine and precedent should serve text and principle, and not the other way around. This advice about overruling previous decisions is of particular importance to members of the Supreme Court. If you are a lower court judge, you should do your best to accommodate your judgment in terms of existing upper court precedent.
As frequent readers of LTB know, I’m generally in sympathy with Balkin’s version of New Originalism, but I am wary of the notion that individual judges should "exercise [their] best judgment" on a case-by-case basis. Of course, Balkin’s discussion here is very brief and schematic, so I’m not actually sure what Balkin means. Consider two interpretations:
(1) Best judgment as "private first-order reasons." Balkin might be advising each judge to rely on her own beliefs about the question whether existing doctrine "adequately serves text and principle." Of course, different judges will have different beliefs about the crucial questions, such as (a) what are the true principels underlying a given constitutional provision, (b) what is the original public meaning (or semantic content) of the constitutional text, (c) does the existing doctrine adequately serve the text and principles. If each judge answers these questions on the basis of his or her own private beliefs about the answers, then when the Balkin’s injunction to overrule "inadequate" precedent gives stare decisis almost no role within this domain.
(2) Best judgment as including "public second-order reasons." On the other hand, when Balkin says "best judgment" and uses the vague term "adequately" he might be leaving room for judges to defer to the doctrine of stare decisis when prior decisions have settled a particular question of constitutional law on the basis of the very factors that Balkin identifies. If that is Balkin’s view, the implication is that a particular judge might reason as follows: "I personally believe that doctrine X has departed from the original public meaning of constitutional provision Y, but other judges have reached the opposite conclusion in a prior decision. Rather than rely solely on my own beliefs about these matters, my overall "best judgment" factors in the doctrine of stare decisis and deferal to the settlement of this question by the prior decision. Therefore, my best judgment is that existing doctrine adequately serves the test, even though my personal belief is to the contrary."
Even if Balkin accepts the second interpretation, I suspect that he and I disagree about the range of circumstances in which deferral to stare decisis is appropriate. On that question, my position is articlulated in The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights.
If you haven’t read Balkin’s recent series of five posts, here are the links: Part One Part Two Part Three Part Four Part Five.