Justice Gorsuch's Views on Precedent in the Context of Statutory Interpretation

Abstract

The doctrine of precedent, in its stare decisis form, presents a challenge to any originalist. This doctrine provides that a court should (at least sometimes) be bound by its own precedent, even if that precedent was wrongly decided in the first place. Yet if the original meaning of the text at issue is a judge’s focus, why should an intervening decision of the court—and a mistaken one at that— matter at all? Despite this tension, every originalist also at least purports to care about precedent.

This Essay focuses on Justice Gorsuch’s apparent views on precedent in the context of statutory interpretation, where precedent is said to have special force. To this end, I review the available evidence, including Justice Gorsuch’s coauthored treatise on precedent, his opinions while serving on the court of appeals, his public speeches, and the early opinions (majorities, concurrences, and dissents) he has written while on the Supreme Court.

Keywords: precedent, stare decisis, statutory interpretation, originalism, Supreme Court, judicial deference, legislative acquiescence, statutes, textualist

JEL Classification: K19